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Subject: Is the HOA attorney correct in officer/director bylaws?
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JanineR
(Tennessee)

Posts:190


07/22/2021 12:26 PM  
“Director Jane” resigned. “Director John” was voted in a Board meeting to be in the officer President position, which is fine.

But here are the minutes >just< published:
“Based on the opinion of [HOA Attorney], [Director John’s] election to the office of President will stay intact until the next Annual Members meeting at which time [Director Jane’s] open board position will be filled through board member elections to fill the balance of her term as specified in Section 4, Paragraph C of the bylaws.”


--------------------
Question: Is the attorney confusing directors and officers too?

TN condos/ 145 units
--------------------



Bylaws:
Directors
Section 4, Paragraph c
(c) Except ·as to vacancies provided by removal of Directors by members, vacancies in the Board of Directors occurring between annual meetings of members shall be filled by the remaining Directors until the earlier of (i) the next annual meeting of the members, and (ii) the date of a special meeting called pursuant to these Bylaws for the purpose of filling the vacancy, at which time a Director shall be elected to fill the remaining term of any such vacancy.

Officers
Section 7, Paragraph a
The executive officers of the Association shall be a President, who shall be a Director, a Vice President, who shall be a Director, a Treasurer, and a Secretary, all of whom shall be elected, annually by·the Board of Directors and who may be removed by vote of the Directors at any meeting. Any person may hold two (2) or more offices, except, for the President shall not also be the Secretary. The Board of Directors may from time· to time elect other officers to exercise such powers and duties as the Board shall find to be required to manage the affairs of the Association. Compensation, if any, of officers shall be fixed by the Board of Directors.
AugustinD


Posts:1585


07/22/2021 12:34 PM  
Posted By JanineR on 07/22/2021 12:26 PM
“Director Jane” resigned. “Director John” was voted in a Board meeting to be in the officer President position, which is fine.

But here are the minutes >just< published:
“Based on the opinion of [HOA Attorney], [Director John’s] election to the office of President will stay intact until the next Annual Members meeting at which time [Director Jane’s] open board position will be filled through board member elections to fill the balance of her term as specified in Section 4, Paragraph C of the bylaws.”


--------------------
Question: Is the attorney confusing directors and officers too?
I think the COA attorney is confusing this and more. I reviewed the Bylaws you posted. There is nothing particularly unique about them. Many HOAs/COAs Bylaws say the same or close to the same.

First, the seat vacated by Director Jane may be filled at any time up to the next annual election via appointment by the directors. Competent COA attorneys nationwide favor filling the seat over not filling the seat, assuming someone qualified is willing and able.

Second, the board may vote to replace Director John as President at any time it desires.

This attorney appears to be either very new to COA law; very confused; not-a-COA-attorney; or incompetent.
JanineR
(Tennessee)

Posts:190


07/22/2021 12:45 PM  
AugustinD, that is how I read it too.

However the HOA attorney is touted to be the best in Tennessee, and the only one with certain HOA credentials.

And his boss is..... Director John.

So I don't know how to approach this. Our community continually does not run by the Governing Documents in so many ways.
JackJ9


Posts:0


07/22/2021 12:51 PM  
The attorney's statement makes perfect sense to me (no confusion of board/director positions) if the directors term is 2 years or more. In other words:

Director John was voted by the board to be President after Director Jane departed.

Director Jane's position (as a director) will be filled for the remainder of her term at the next election.

Makes sense if Director Jane is not up for election anyway at the next election.
AugustinD


Posts:1585


07/22/2021 12:59 PM  
Posted By JanineR on 07/22/2021 12:45 PM
the HOA attorney is touted to be the best in Tennessee, and the only one with certain HOA credentials.
Do tell. From your Bylaws, from experience, possibly with some reinforcement from Tennessee's COA Act or Nonprofit Corporation Act. This "attorney" is wrong.
And his boss is..... Director John.
Did you raise this (wild and confounding) scenario before, asserting that the COA attorney was also Director-President John's personal attorney?

Once you answer the above, I will see if I can make suggestions on how to handle this.
JanineR
(Tennessee)

Posts:190


07/22/2021 1:24 PM  
Posted By AugustinD on 07/22/2021 12:59 PM
Posted By JanineR on 07/22/2021 12:45 PM
the HOA attorney is touted to be the best in Tennessee, and the only one with certain HOA credentials.
Do tell. From your Bylaws, from experience, possibly with some reinforcement from Tennessee's COA Act or Nonprofit Corporation Act. This "attorney" is wrong.
And his boss is..... Director John.
Did you raise this (wild and confounding) scenario before, asserting that the COA attorney was also Director-President John's personal attorney?

Once you answer the above, I will see if I can make suggestions on how to handle this.





a) First and only College of Community Association Lawyers (CCAL)

b) I didn't post before that the attorney works for one of the Board of Directors.
This has been a big concern for me. But from asking around, the consensus is that the lawyer is not in any conflict of interest until someone sues the directors. Only then he would need to recuse himself?

If the HOA Attorney is advising the Board correctly then it is fine, but if he is not, then I need direction
MaxB4


Posts:1210


07/22/2021 1:25 PM  
Were jane and John on the Board at the same time, or was John appointed by the Bard to fill the position of Director?
JanineR
(Tennessee)

Posts:190


07/22/2021 1:28 PM  
Jane and John were on the Board at the same time.

There were 5.
Jane resigned. Then there were 4.
MaxB4


Posts:1210


07/22/2021 1:31 PM  
Then I see no issue. The reason, your Bylaws state the director position can be filled at the earliest of, so the next annual election may have been the earliest option.
AugustinD


Posts:1585


07/22/2021 1:36 PM  
Thee most important question:

Do you have a board majority that wishes to get rid of John as President?
Posted By JanineR on 07/22/2021 1:24 PM


a) First and only College of Community Association Lawyers (CCAL)
Thanks for the credential. (I asked. You told.)

To his CCAL yada bona fide: Big deal.

I am on your side here, so far.
b) I didn't post before that the attorney works for one of the Board of Directors.
This has been a big concern for me. But from asking around, the consensus is that the lawyer is not in any conflict of interest until someone sues the directors. Only then he would need to recuse himself?
I would call the conflict of interest right now, right this second, enormous. This attorney is making a call that favors his client John but also goes directly against the Bylaws of his other client, the COA.

If the HOA Attorney is advising the Board correctly then it is fine, but if he is not, then I need direction
You could certainly politely, sweetly ask, cc'ing the rest of the board, this "attorney" whether he feels that advising the board that it may appoint a new president conflicts with his duty to advocate for his personal client, John.

You could report this attorney to the bar, assuming you want to study the rules of professional conduct and bust his a-- in a very formal way. But this requires a lot of study; the ability to write well; and more. Then there's the almost guaranteed likelihood of retaliation by the attorney and the president. Count on the latter.

MaxB4


Posts:1210


07/22/2021 2:08 PM  
So no one wants to challenge the lord almighty, well I will.

Officers are elected annually by the directors, it also appears directors are elected annually by the members.

Jane, as a director, is out, both as a director and officer.

John, who was a director while Jane was on the board, was voted in by director by the board. Officer positions are elected annually by the board, but can be changed for whatever reason during the course of the year.

It is possible that the earliest time to fill Jane's position as director was at the upcoming annual meeting, as stated in the Bylaws.

The attorney is not confusing the position, but may the OP and Augie are. There is nothing confusing about the attorney's statement.

That should coincide with Augie's extensive experience managing HOA Boards.
AugustinD


Posts:1585


07/22/2021 2:15 PM  
This:
Posted By MaxB4 on 07/22/2021 2:08 PM
Officer positions are elected annually by the board, but can be changed for whatever reason during the course of the year.
conflicts directly with this COA attorney's position as given here:
Posted By JanineR on 07/22/2021 12:26 PM
“Director Jane” resigned.
But here are the minutes >just< published:
“Based on the opinion of [HOA Attorney], [Director John’s] election to the office of President will stay intact until the next Annual Members meeting
MaxB4


Posts:1210


07/22/2021 2:24 PM  
Posted By AugustinD on 07/22/2021 2:15 PM
This:
Posted By MaxB4 on 07/22/2021 2:08 PM
Officer positions are elected annually by the board, but can be changed for whatever reason during the course of the year.
conflicts directly with this COA attorney's position as given here:
Posted By JanineR on 07/22/2021 12:26 PM
“Director Jane” resigned.
But here are the minutes >just< published:
“Based on the opinion of [HOA Attorney], [Director John’s] election to the office of President will stay intact until the next Annual Members meeting



And what exactly is conflicting? Did you want him/her to follow your Law of Contracts and say they hold their position until the annual meeting (which by definition is every year) and/or by changed during the course of the year?
AugustinD


Posts:1585


07/22/2021 2:28 PM  
MaxB4, I am honestly not sure if you are posting while intoxicated. I think the thread speaks for itself. I stand by my position.
MaxB4


Posts:1210


07/22/2021 2:38 PM  
Posted By AugustinD on 07/22/2021 2:28 PM
MaxB4, I am honestly not sure if you are posting while intoxicated. I think the thread speaks for itself. I stand by my position.



Sorry, I can't drink, and exactly what is your position, based on your vast expereince!
JanineR
(Tennessee)

Posts:190


07/22/2021 3:27 PM  
I’m still not savvy on the quote feature of this forum.

MaxB4: Officers are elected annually by the directors, it also appears directors are elected annually by the members.

JanineR: Agree.
Officers are are elected annually by the directors at minimum per the bylaws.
In reality, this does not happen.

MaxB4: “Jane, as a director, is out, both as a director and officer.”

JanineR: Completely agree.
But why would a new director voted in on the annual meeting by members, only have a limited term and not the usual two years of a director?
The attorney says ” [Director Jane’s] open board position will be filled through board member elections to fill the balance of her term as specified in Section 4, Paragraph C of the bylaws.”

MaxB4: “John, who was a director while Jane was on the board, was voted in by director by the board. Officer positions are elected annually by the board, but can be changed for whatever reason during the course of the year.”
JanineR: Agree. John was already a director. When Jane left, it's okay for four directors to continue until the next annual meeting or a special meeting per our Bylaws. And it is okay for them to shuffle up officer positions. But I disagree with the attorney when he says "[John’s] election to the office of President will stay intact until the next Annual Members meeting.” and quote the section of the bylaws that relates to directors not officers.
I disagree because changing of president is not reliant on the annual members meeting.

MaxB4: It is possible that the earliest time to fill Jane's position as director was at the upcoming annual meeting, as stated in the Bylaws.
JanineR: yes, that is the earliest opportunity. There is no time for a special meeting. But I question why one of the newly voted board is only allowed to serve for the "balance" of Jane's term as president? When it seems like a reset of director's term.
JohnC46
(South Carolina)

Posts:11417


07/22/2021 3:30 PM  
Jan

I think the wording of the minutes is the problem.

But here are the minutes >just< published:
“Based on the opinion of [HOA Attorney], [Director John’s] election to the office of President will stay intact until the next Annual Members meeting at which time [Director Jane’s] open board position will be filled through board member elections to fill the balance of her term as specified in Section 4, Paragraph C of the bylaws.”

Should have said:

Director Jane resigned from the BOD creating a vacancy on the BOD. This vacancy will be filled via member election to the BOD at the next Annual Meeting.

The BOD held a BOD Officers election and Director John was elected President.

Concise and simple.

MaxB4


Posts:1210


07/22/2021 3:47 PM  
Posted By JohnC46 on 07/22/2021 3:30 PM
Jan

I think the wording of the minutes is the problem.

But here are the minutes >just< published:
“Based on the opinion of [HOA Attorney], [Director John’s] election to the office of President will stay intact until the next Annual Members meeting at which time [Director Jane’s] open board position will be filled through board member elections to fill the balance of her term as specified in Section 4, Paragraph C of the bylaws.”

Should have said:

Director Jane resigned from the BOD creating a vacancy on the BOD. This vacancy will be filled via member election to the BOD at the next Annual Meeting.

The BOD held a BOD Officers election and Director John was elected President.

Concise and simple.




You should have been the Secretary writing the minutes.
JanineR
(Tennessee)

Posts:190


07/22/2021 3:53 PM  
That would have been great wording.

Here is the email too from the management company to selective owners:

Email:
"We are sorry to say that {Director Jane} has resigned her board seat. Given that, there are now 4 board seats open for election. If you have interest in serving either the balance of {Director Jane’s} 1 year term or one of the 3, two-year terms open, please submit your nomination per the communicated process to …."

----
I question that one of the 4 new board seats has a limited term.
And there has been no BOD meeting annually or otherwise ever to vote for officer selections.
Honestly, the BOD do not know they can do that.

JanineR
(Tennessee)

Posts:190


07/22/2021 3:58 PM  
Three people volunteered last year for two openings.
That is really impressive.

The management company of 11 years called no quorum, but later it turned out that they miscalculated the quorum.

The management company (for all these years) was counting the quorum as 51% but our governing documents are 30%.
MaxB4


Posts:1210


07/22/2021 4:00 PM  
Janine,

First, a number of boards don't follow the governing documents and elections is no different.

Many Bylaws will have a provision that appointed or elected director replacing a resigning director be until election and then to fill an unexpired term. That is done to keep the terms correct.

Technically John's position as president expires at the annual meeting. The association should have new officer elections at the annual meeting and it is possible John could be re-elected. It is not required to state that officer positions can be changed at any time.

It sounds like people have a bug that the attorney didn't state that officer positions could be changed during the course of the year, which, IMHO, is childish.
MaxB4


Posts:1210


07/22/2021 4:12 PM  
Posted By JanineR on 07/22/2021 3:53 PM
That would have been great wording.

Here is the email too from the management company to selective owners:

Email:
"We are sorry to say that {Director Jane} has resigned her board seat. Given that, there are now 4 board seats open for election. If you have interest in serving either the balance of {Director Jane’s} 1 year term or one of the 3, two-year terms open, please submit your nomination per the communicated process to …."

----
I question that one of the 4 new board seats has a limited term.
And there has been no BOD meeting annually or otherwise ever to vote for officer selections.
Honestly, the BOD do not know they can do that.




It is not uncommon to have an election for an unexpired term. We do that for Congress. It may be for the balance of one year. It keeps everything in a regular cycle. I know Boards and attorneys screw up interpretation of how elections are run.

Too many boards think they are in the same officer position for the same period as director, not so.

I am conducting an annual meeting and election in California while in Michigan tonight, 6:00 PM PST. The association is 5 short of quorum, and the presiding will make a motion to adjourn to a later date. It will get voted down and the election will be over. If the members voted to adjourn, then quorum is cut in half and they have even ballots. Unfortunately, not enough people understand the rules for adjournment. So the election will be cancelled again.
JanineR
(Tennessee)

Posts:190


07/22/2021 4:27 PM  
Too many boards think they are in the same officer position for the same period as director, not so.




That is the experience of this board.
And seems to be backed up by the attorney by the minutes in the original post.
MaxB4


Posts:1210


07/22/2021 4:31 PM  
Posted By JanineR on 07/22/2021 4:27 PM
Too many boards think they are in the same officer position for the same period as director, not so.




That is the experience of this board.
And seems to be backed up by the attorney by the minutes in the original post.



If, boards are to elect officers at every annual meeting, what was wrong with the attorney's quote?
JanineR
(Tennessee)

Posts:190


07/22/2021 4:37 PM  
at the annual meeting of members or board?
MaxB4


Posts:1210


07/22/2021 4:45 PM  
Posted By JanineR on 07/22/2021 4:37 PM
at the annual meeting of members or board?



It should be done in conjuction and same time and date as the annual meeting of members. Sometimes it is done at the next board meeting while the board ponders or campaigns for that "coveted" officer position.
KerryL1
(California)

Posts:8524


07/22/2021 4:54 PM  
Agree with JohnC that the minutes are confusing. The sec'y seems to have crafted a mess. But the Bylaws aren't confusing. John's term in the office of prez expires at the annual meeting. The new board can appoint him again if they wish.

The PM wrote: "Given that, there are now 4 board seats open for election. If you have interest in serving either the balance of {Director Jane’s} 1 year term or one of the 3, two-year terms open, please submit your nomination …."

We did exactly the same thing in Oct. '20. The director with the fewest votes among 4 was given a one year term to finish the resigned director's term. The 3 with more votes were all elected for the two years specified in our Bylaws. Our attorney, in a previous similar situation, opined that since our Bylaws specify staggered terms, this is the correct way keep the terms staggered.

In a board of fie, say, if 4 directors are all elected for 2-year terms you have a situation where there could be 4 newbies and one veteran direct. It's better to have more vets than just one in a board of 5 or 7.

Sec. 7 makes it very clear all officers are elected annually.

I still don't get what Janine means by John being the attorney's boss. Is the attorney John's personal attorney? Or is the attorney HOA couple who was hired by a decision of the Board?
BenA2
(Texas)

Posts:1003


07/22/2021 4:58 PM  
I don't see any confusion. If you only read the paragraph about officers, the Board of Directors (BOD) must elect the president every year. That implies that the term ends every year. It is silent on resignations so it makes sense (and is fairly standard) that the BOD would vote in a new president to finish the current term at which time the BOD must have another vote.

Our bylaws are almost identical but we use the term appointed instead of elected. Either are accurate since the BOD has to vote to appoint an officer.
JohnC46
(South Carolina)

Posts:11417


07/23/2021 7:32 AM  
Our Bylaws say that any person appointed to the BOD, by the BOD, to fill a vacancy will fill out the remainder of the term. I have seen Bylaws that say the appointed person fills the spot until the next Annual Election.

Our Bylaws say that a BOD Officer election will take place at the first BOD Meeting after the Annual Election.

Our Bylaws say the BOD can call for a BOD Officer Election any time a majority of the BOD agrees to call FOR such.
AugustinD


Posts:1585


07/23/2021 8:17 AM  
Posted By MaxB4 on 07/22/2021 4:31 PM

If, boards are to elect officers at every annual meeting, what was wrong with the attorney's quote?
Boards can replace an officer at any time via majority vote. The attorney stated that Director John is president until the next annual election. Wrong. Director John serves at the pleasure of a board majority.

The board can fill the seat vacated by Jane at any time. The question appears to be how long the director filling this seat serves? I cannot tell.

I cannot tell what JanineR's question is at this point. Does she object to Director John being president? Does she have a board majority that would like to remove him?

Clarification is needed.
MaxB4


Posts:1210


07/23/2021 8:29 AM  
Posted By AugustinD on 07/23/2021 8:17 AM
Posted By MaxB4 on 07/22/2021 4:31 PM

If, boards are to elect officers at every annual meeting, what was wrong with the attorney's quote?
Boards can replace an officer at any time via majority vote. The attorney stated that Director John is president until the next annual election. Wrong. Director John serves at the pleasure of a board majority.

The board can fill the seat vacated by Jane at any time. The question appears to be how long the director filling this seat serves? I cannot tell.

I cannot tell what JanineR's question is at this point. Does she object to Director John being president? Does she have a board majority that would like to remove him?

Clarification is needed.



You're not an attorney, STOP acting like one. If a person is asked how long an officer serves for, the answer is until the next annual meeting. Why would anyone volunteer about removal.

Actually, Janine posted when the director vacancy can be filled. You might want to read it again, or maybe for the first time.
AugustinD


Posts:1585


07/23/2021 8:38 AM  
Posted By MaxB4 on 07/23/2021 8:29 AM
If a person is asked how long an officer serves for, the answer is until the next annual meeting.
So you're an attorney?

It is grossly inaccurate and misleading for either the Minutes or a COA attorney to say, "“Based on the opinion of [HOA Attorney], [Director John’s] election to the office of President will stay intact until the next Annual Members meeting... " Bullsh-t. The President serves at the pleasure of the board and may be replaced at any time.

As for the seat vacated by Jane, I await clarification of what it is JanineR wants to know.

If you think people should not play attorney here, and since you play attorney all the time, then you should quit posting here.

This site if open to anyone civil enough to not be booted off. I have a right to my opinion.
MaxB4


Posts:1210


07/23/2021 8:51 AM  
Sorry, it doesn't meet your standards, GET OVER IT.

No, I ain't no attorney, but worked two years for an HOA law firm. I found that attorneys really didn't learn anything for the three years in law school, or the whatever time they were under the wings of a drunk mentor.

I've written 50 sets of Election Rules for all the associations I manage. Each one were properly vetted by the board and by the owners. I've had to read through each HOA's Bylaws in creating the election rules. I have 13 years of California HOA law seminars that I have attended. You or I don't know what the attorney actually say, only what someone put into the minutes.
AugustinD


Posts:1585


07/23/2021 9:14 AM  
MaxB4, you and I agree that the President and other officers may be replaced at any time through a board majority vote.
MaxB4


Posts:1210


07/23/2021 10:03 AM  
Posted By AugustinD on 07/23/2021 9:14 AM
MaxB4, you and I agree that the President and other officers may be replaced at any time through a board majority vote.



So why are your panties in a bunch?
AugustinD


Posts:1585


07/23/2021 10:12 AM  
MaxB4,you're the one insisting first, that the Minutes or COA attorney got it right but at the same time, the Minutes or the COA attorney got it wrong.
MaxB4


Posts:1210


07/23/2021 10:17 AM  
So how long is the term for president of the United States. Is it four years, or is it four years or whenever the opposing party wants to impeach a president and the Senate votes his sorry butt out of office. I am just paraphrasing.
JanineR
(Tennessee)

Posts:190


07/23/2021 10:19 AM  
To answer some questions:

I’m not concerned that Jack was voted by the Board to be president officer after Jane resigned. That seems perfectly fine.

I’m okay if he stays in the position until the next annual meeting. At which time his term as a BOD is up anyway. But staying in that position has nothing to do with the annual meeting.

I am concerned that the attorney’s quote references that he stays in that position according to the Directors section of the Bylaws, instead of the Officer section. If he stays in that officer position until the next annual meeting, that’s up to the Board, but not to do with the annual member meeting and the bylaw section that he quoted.

The reason that I am concerned is that we have had the same board for years and years, and they all stay in the same officer position.
It seems to be the consensus from the Board and the MC that once you are on the Board you stay in the same officer position for two years, then the next two years, then the next two years.
But our bylaws say that there should be a board vote at minimum of every year, and can also be voted at any board meeting in between that time. Nothing to do with annual member meetings.

We’ve had the same Treasurer for 6 years. I was hoping that the attorney was going to shed some light to the Board and the Management Company that officer positions are not necessarily a two year term, and that members do not have any vote on officer positions. So I was disappointed when I saw this statement from the attorney.

Side note: When I post a question, it is not to get confirmation that I am right, it is to hear different points of view.

Side note 2: Why we have the same board year after year is another topic. It is not related to lack of people volunteering, or lack of quorum. That's for another post.
AugustinD


Posts:1585


07/23/2021 10:25 AM  
Posted By JanineR on 07/23/2021 10:19 AM

I’m okay if [Director John remains President] until the next annual meeting. At which time his term as a BOD is up anyway. But staying in that position has nothing to do with the annual meeting.
I agree. John serves as President as long as a board majority wants him as president
I am concerned that the attorney’s quote references that he stays in that position according to the Directors section of the Bylaws, instead of the Officer section.
This is a blunder by the attorney or possibly the secretary who wrote the Minutes. This blunder grossly misleads the membership and the directors into thinking that the Board cannot remove John as President at any time.
If he stays in that officer position until the next annual meeting, that’s up to the Board, but not to do with the annual member meeting and the bylaw section that he quoted.
I agree.
AugustinD


Posts:1585


07/23/2021 10:33 AM  
Posted By MaxB4 on 07/23/2021 10:17 AM
So how long is the term for president of the United States. Is it four years, or is it four years or whenever the opposing party wants to impeach a president and the Senate votes his sorry butt out of office. I am just paraphrasing.
Context is everything. JanineR is clear that the board (mistakenly) thinks that it cannot replace officers at will, and that this has been a problem. Now she has to face off against a foolish COA attorney (who also -- huh -- represents John personally?) on the point.
MaxB4


Posts:1210


07/23/2021 10:34 AM  
So, what is the term of a director?
MaxB4


Posts:1210


07/23/2021 10:37 AM  
Posted By AugustinD on 07/23/2021 10:33 AM
Posted By MaxB4 on 07/23/2021 10:17 AM
So how long is the term for president of the United States. Is it four years, or is it four years or whenever the opposing party wants to impeach a president and the Senate votes his sorry butt out of office. I am just paraphrasing.
Context is everything. JanineR is clear that the board (mistakenly) thinks that it cannot replace officers at will, and that this has been a problem. Now she has to face off against a foolish COA attorney (who also -- huh -- represents John personally?) on the point.




1. How can the board be mistaken, they have the Bylaws, and she posted one part of them.

2. How do you know that is what the attorney said, and more importantly, how do you know the Secretary wrote the minutes?
AugustinD


Posts:1585


07/23/2021 10:45 AM  
MaxB4, you are hijacking the thread.

For one thing, JanineR wants to know if officers can be replaced at any time. You and I agree the answer is yes.
JanineR
(Tennessee)

Posts:190


07/23/2021 10:47 AM  
Posted By MaxB4 on 07/23/2021 10:34 AM
So, what is the term of a director?




It is two years.


"(b) At the first meeting of the members of the Association following the Developer Control Period three (3) persons {later amended to 5} shall be elected to serve as the Board of Directors. The term of office of those elected shall be two (2) years. The election shall be by ballot and by a plurality of the votes cast, each member voting must cast hos or her vote(s) for as many nominees as there are vacancies to be filled, but there shall be no cumulative voting.
MaxB4


Posts:1210


07/23/2021 10:52 AM  
Posted By JanineR on 07/23/2021 10:19 AM
To answer some questions:

I’m not concerned that Jack was voted by the Board to be president officer after Jane resigned. That seems perfectly fine.

I’m okay if he stays in the position until the next annual meeting. At which time his term as a BOD is up anyway. But staying in that position has nothing to do with the annual meeting.

I am concerned that the attorney’s quote references that he stays in that position according to the Directors section of the Bylaws, instead of the Officer section. If he stays in that officer position until the next annual meeting, that’s up to the Board, but not to do with the annual member meeting and the bylaw section that he quoted.

The reason that I am concerned is that we have had the same board for years and years, and they all stay in the same officer position.
It seems to be the consensus from the Board and the MC that once you are on the Board you stay in the same officer position for two years, then the next two years, then the next two years.
But our bylaws say that there should be a board vote at minimum of every year, and can also be voted at any board meeting in between that time. Nothing to do with annual member meetings.

We’ve had the same Treasurer for 6 years. I was hoping that the attorney was going to shed some light to the Board and the Management Company that officer positions are not necessarily a two year term, and that members do not have any vote on officer positions. So I was disappointed when I saw this statement from the attorney.

Side note: When I post a question, it is not to get confirmation that I am right, it is to hear different points of view.

Side note 2: Why we have the same board year after year is another topic. It is not related to lack of people volunteering, or lack of quorum. That's for another post.



1. Was Jane the previous president?

2. Why doesn't the annual meeting mean anything as far as officer positions are concerned. Because nothing was followed previously?

3. I believe you need to educate yourself on how HOA's work, as well as your whole community. This place is not the right forum for that., because most of the answers will be, well, this is the way we do things.

4. If a Board vote is required, when, in your opinion, would be a good time? How about an Annual meeting when the whole community has an opportunity to view. Remember first and foremost, you're not just a HOA, but alos a corporation. When do you think they elect officers?

5. The attorney doesn't run the association, the board does. What if the attorney did tell the Board and MC and they ignored. What a shock, happens all the time.

6. You don't need different points of view on this. This is a right way and a wrong way.

7. Your have the same board and same officers, well that's on the membership.
MaxB4


Posts:1210


07/23/2021 10:53 AM  
Posted By JanineR on 07/23/2021 10:47 AM
Posted By MaxB4 on 07/23/2021 10:34 AM
So, what is the term of a director?




It is two years.


"(b) At the first meeting of the members of the Association following the Developer Control Period three (3) persons {later amended to 5} shall be elected to serve as the Board of Directors. The term of office of those elected shall be two (2) years. The election shall be by ballot and by a plurality of the votes cast, each member voting must cast hos or her vote(s) for as many nominees as there are vacancies to be filled, but there shall be no cumulative voting.



Can they be recalled, or resign, or worse yet, die?
KerryL1
(California)

Posts:8524


07/23/2021 10:55 AM  
Janine isn't on the Board, right?

Janine, perhaps the board knows very well that directors' terms are for 2 years per your Bylaws. But they're ignoring them. Now, our Bylaws state that as soon as possible after the annual meeting, the Board meets to appoint or (s)elect officers for a one-year term, which is typical Do your Bylaws state that?

In CA and maybe elsewhere this Board meeting must be open to owners. Our HOA holds this "Organizational Meeting" immediately after the election.

Janine, do you think the Board would share the Attorney's actual written opinion with Owners??
MaxB4


Posts:1210


07/23/2021 10:58 AM  
I am guessing that Jane was the president and resigned as president and director mid-year. The board voted John in, for how long? Attorney says until next election. If I were asked a question how long is this term done in mid-year, my answer would be until next annual meeting. If asked, can they be replaced at anytime, my answer would be what is in your Bylaws under Officers.

This is YOUR association, not ours. Someone on your side has to be the expert. You may get some good answers here, but there is more quality information out there on the web that someone has to do the research on.
JanineR
(Tennessee)

Posts:190


07/23/2021 11:03 AM  
1. How can the board be mistaken, they have the Bylaws, and she posted one part of them.


That's part of the issue. We have had the same board and same officer positions for years, due to lack of understanding of the bylaws, including what constitutes a quorum. 11 years with the same management company, and they did not know that the quorum is 30% not 51% according to our Bylaws.

The former President said they don't like to get into the minuture of bylaws.

They just don't follow them. Including state statutes.

But that is the heart of being on the board.

Yes, I could take that BOD's statement to a court, but I was hoping that this next annual meeting would be a reset. And we can start over, and respect the Master Deed and Bylaws. But its going down the path that will not be the case.
MaxB4


Posts:1210


07/23/2021 11:13 AM  
Posted By JanineR on 07/23/2021 11:03 AM
1. How can the board be mistaken, they have the Bylaws, and she posted one part of them.


That's part of the issue. We have had the same board and same officer positions for years, due to lack of understanding of the bylaws, including what constitutes a quorum. 11 years with the same management company, and they did not know that the quorum is 30% not 51% according to our Bylaws.

The former President said they don't like to get into the minuture of bylaws.

They just don't follow them. Including state statutes.

But that is the heart of being on the board.

Yes, I could take that BOD's statement to a court, but I was hoping that this next annual meeting would be a reset. And we can start over, and respect the Master Deed and Bylaws. But its going down the path that will not be the case.



Based on what you just posted, you have MUCH bigger issue than an attorney supposedly saying John is president until the next annual meeting.

Your local CAI Chapter for Tennessee is https://www.caitenn.org/. You can get some good HOA educational material there.
JanineR
(Tennessee)

Posts:190


07/23/2021 11:21 AM  
Posted By MaxB4 on 07/23/2021 11:13 AM
Posted By JanineR on 07/23/2021 11:03 AM
1. How can the board be mistaken, they have the Bylaws, and she posted one part of them.


That's part of the issue. We have had the same board and same officer positions for years, due to lack of understanding of the bylaws, including what constitutes a quorum. 11 years with the same management company, and they did not know that the quorum is 30% not 51% according to our Bylaws.

The former President said they don't like to get into the minuture of bylaws.

They just don't follow them. Including state statutes.

But that is the heart of being on the board.

Yes, I could take that BOD's statement to a court, but I was hoping that this next annual meeting would be a reset. And we can start over, and respect the Master Deed and Bylaws. But its going down the path that will not be the case.



Based on what you just posted, you have MUCH bigger issue than an attorney supposedly saying John is president until the next annual meeting.

Your local CAI Chapter for Tennessee is https://www.caitenn.org/. You can get some good HOA educational material there.




Agree.
Chipping away each thing at a time.
The bigger issue is that Master Deed and Bylaws are not honored.
And the bigger bigger issue is that they must follow them at the next annual meeting. But it's not looking good.
Owners are already deciding on which positions that they are applying for, and to me, that is not up to 'us' right now, and the attorney's response adds confusion.
JanineR
(Tennessee)

Posts:190


07/23/2021 11:24 AM  
Posted By MaxB4 on 07/23/2021 11:13 AM
Posted By JanineR on 07/23/2021 11:03 AM
1. How can the board be mistaken, they have the Bylaws, and she posted one part of them.


That's part of the issue. We have had the same board and same officer positions for years, due to lack of understanding of the bylaws, including what constitutes a quorum. 11 years with the same management company, and they did not know that the quorum is 30% not 51% according to our Bylaws.

The former President said they don't like to get into the minuture of bylaws.

They just don't follow them. Including state statutes.

But that is the heart of being on the board.

Yes, I could take that BOD's statement to a court, but I was hoping that this next annual meeting would be a reset. And we can start over, and respect the Master Deed and Bylaws. But its going down the path that will not be the case.



Based on what you just posted, you have MUCH bigger issue than an attorney supposedly saying John is president until the next annual meeting.

Your local CAI Chapter for Tennessee is https://www.caitenn.org/. You can get some good HOA educational material there.





Also, the CAI chapter for Tennessee is currently hacked. I am a member. I sent them an email this morning. Trust me, don't click on any button on that page, or else you will see what I'm talking about!
MaxB4


Posts:1210


07/23/2021 11:24 AM  
You're in the corporate world, members decide directors, directors decide officers.
JanineR
(Tennessee)

Posts:190


07/23/2021 12:04 PM  
Agree.
So why would the attorney state that the officer position length is based on the time to the next member's annual meeting? When members don't vote on officers?
MaxB4


Posts:1210


07/23/2021 12:09 PM  
Posted By JanineR on 07/23/2021 12:04 PM
Agree.
So why would the attorney state that the officer position length is based on the time to the next member's annual meeting? When members don't vote on officers?



Because, at the annual meeting, members vote for directors. Once that happens, the next occurrence is for the directors, amongst themselves, generally open to the members, elect or appoint the association officers. Some Bylaws and/or customs is to handle the officers position at the next meeting, giving directors a chance to campaign for a position.
JanineR
(Tennessee)

Posts:190


07/23/2021 12:18 PM  
Posted By KerryL1 on 07/23/2021 10:55 AM
Janine isn't on the Board, right?

Janine, perhaps the board knows very well that directors' terms are for 2 years per your Bylaws. But they're ignoring them. Now, our Bylaws state that as soon as possible after the annual meeting, the Board meets to appoint or (s)elect officers for a one-year term, which is typical Do your Bylaws state that?

In CA and maybe elsewhere this Board meeting must be open to owners. Our HOA holds this "Organizational Meeting" immediately after the election.

Janine, do you think the Board would share the Attorney's actual written opinion with Owners??





Thanks Kerry,
Correct, I am not on the Board, but volunteered last year and again for this upcoming meeting.

I'm going off topic here which I tried not to do:

Last year was called a wash due to no quorum, but that was incorrect.
After eleven years, the HOA and MC now finally admits that they were mistaken that quorum is not 51% but 30% per our Bylaws. I had to send them the official bylaws after last years meeting. They were working off the original developer version not the subsequent amendments.
They also miscounted attendance. It was a zoom call. The PM counted how many lines were open, not how many votes each line had. For example, some owners own 6 units which are 6 votes. Even the lines open were more than quorum, but during the meeting she was using the wrong quorum percentage, so called it a wash.

The PM has an invested interest in no new board, as almost all, if not all, owners that have volunteered to be on the board over the last few years want to do an RFP for new management.

Another owner did a petition for a special meeting, and over 30% signed it when only 20% was needed. The Board did not hold a special meeting.


------

Kerry, I asked the PM for copies of the "Organizational Meeting" minutes about nine months ago, and the answer has been that they did it over email so they don't go into minutes for owners. Again incorrect from what I understand of TN action without a meeting. Not only should they go into minutes, but if it was over email then it has to be unanimous not majority I know of at least one director that did not agree over email. The Board has posted on the MC portal that they will not provide these 'Organizational Meeting' minutes minutes to owners.

I will ask if the Attorney did a written opinion.

There have been many opportunities to sue the HOA, which is such an uphill battle. As the annual meeting approaches the best approach seems to be to volunteer for the board to fix these wrongs instead of suing the HOA which then becomes a cost to all members in some way. Thankfully others are too. My concern is that this annual meeting is not going to run according to our Bylaws again.

I was hoping that the HOA attorney would look at the Bylaws with bias towards the Association as a whole with no bias towards any of the Board, including his boss, or against unit owners are hoping to replace board members, but I'm getting nervous that this 'reset' is not going to happen.
AugustinD


Posts:1585


07/23/2021 12:19 PM  
Posted By JanineR on 07/23/2021 12:04 PM
Agree.
So why would the attorney state that the officer position length is based on the time to the next member's annual meeting? When members don't vote on officers?
Perhaps: To help his personal client John stay entrenched as HOA President, thereby helping ensure this attorney has both John as his client and the COA as his client. The attorney's Tennessee pool is heated and so is the pool at the attorney's summer home in Aspen.
JanineR
(Tennessee)

Posts:190


07/23/2021 12:48 PM  
Posted By AugustinD on 07/23/2021 12:19 PM
Posted By JanineR on 07/23/2021 12:04 PM
Agree.
So why would the attorney state that the officer position length is based on the time to the next member's annual meeting? When members don't vote on officers?
Perhaps: To help his personal client John stay entrenched as HOA President, thereby helping ensure this attorney has both John as his client and the COA as his client. The attorney's Tennessee pool is heated and so is the pool at the attorney's summer home in Aspen.





lol. this is not far off.
I know this is off topic again, because it relates to conflict of interest. But from what I understand so far the HOA attorney working for Director John's law practice is not a conflict of interest until there is a law suit against a director, which is very unlikely.

But in reality, I have seen over the last two years the philosophy of the board is 'don't respond to owners, let's see how much they want these documents, and see if they are willing to sue' instead of 'lets see how we can fix this, without litigation.'

The former is more profitable to the law firm that director John has a piece of, but not advantageous to the Association as a whole.
MaxB4


Posts:1210


07/23/2021 1:05 PM  
IF you think the attorney is the issue, this whole thread has been an exercise in futility.
AugustinD


Posts:1585


07/23/2021 1:08 PM  
Posted By JanineR on 07/23/2021 12:48 PM
lol. this is not far off.
But please be aware I am completely serious about this possibly being the reason for this COA attorney saying what he did.

I know this is off topic again, because it relates to conflict of interest. But from what I understand so far the HOA attorney working for Director John's law practice is not a conflict of interest until there is a law suit against a director, which is very unlikely.
First, I consider this on-topic. Second, because of what you say right above, I do not understand what the COA attorney's exact relationship is to John.

Is John himself an attorney?

If the COA attorney is an attorney in John's law practice, then this is somewhat different from the COA attorney having John as a client. I feel there is still a conflict of interest, but this conflict may not rise to a violation of the attorney's Rules of Professional Conduct. By the way, the latter are enforceable in the courts, usually by the Bar itself bringing suit on behalf of a complainant.

The conflict is: John's law firm, and so technically John, receives a financial benefit from the COA on whose Board John sits. Director-President John should abstain from any votes on whether to contact the law firm to resolve an issue, period. Since getting legal advice is critical for a COA's proper operation (as you are seeing now), the conflict of interest is huge.

The fact that this COA attorney's opinion indicates the COA attorney John to stay president until the next election, even when the bylaws (and state statute?) say the board can remove John as president, is telling.

Still, if the COA membership is apathetic, and even the board does not care, you have little recourse.

I can absolutely imagine your frustration to get these jerks (especially John and the COA attorney) to follow the law and interpret the law correctly.

As CathyA3 aptly puts it at times, quoting Kenny Rogers: You gotta know when to fold 'em. Condo associations can be dam-ed corrupt and dam-ed hard to fight without a lot of money and time and having to work with one's own very busy attorney and a very busy court system that loathes these dumb (to them) HOA/COA disputes.
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