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Subject: Board member uninformed but eager to vote
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DonnaR5
(Virginia)

Posts:138


10/02/2021 2:39 PM  
We recently engaged in a search for a new management company. When it came time to vote on a final decision, a board member clearly intended to vote on the issue, even though she had not attended the three interviews with the candidates or the final meeting in which we evaluated all the proposals. When I pointed out that she had not taken part in any of the fact finding, interviews, or discussion and should abstain from voting, she became highly indignant and said she had a fiduciary duty to vote.

Okay, whatever... in nine years on the board, I had never encountered this sort of situation before. As far as I know, there's no way to not let a board member vote. But I did become curious whether anyone else has had such a situation, and so I bring it here for your comments.
SheliaH
(Indiana)

Posts:4239


10/02/2021 2:57 PM  
Yes, she has a fiduciary duty to vote as the board is there to make decisions on behalf of the entire community, and board members should be making informed decisions when casting the vote. Fortunately, she's only one vote and so she can be outvoted.

On the other hand, she may go along with everyone else and all of you make be in luck and vote for the best candidate. Then again, the ensuing results may prove the Arabs that sometimes all the fools are on the same side.


If this is a new board member, you might pull her aside and encourage her tootsie these votes more seriously - how would she respond if a homeowner asked her why she voted the way she did? Every board member should be able to answer that question on any issue - it's ok if they had a slight different reason. But if they aren't doing their due diligence, like reviewing proposals or asking questions, they're wasting everyone's time, including their own.

If she's been on the board a while, she should already know this, so hopefully it works out. Sooner or later, this will catch up to her and then the homeowners will decide if this is the type of person they want on the board.

AugustinD


Posts:1695


10/02/2021 3:08 PM  
First, I am sure all here agree that contracting with a new management company (MC) is a very big deal.

Second, was all the prior discussion done in executive session (due to this being about contracting with a vendor)?

Third, since hiring a new MC is a big deal, I feel best practice is for someone to motion at an open board meeting to contract with MC xyz. Someone else is supposed to second the motion. Discussion already occurred, in exec session. But you as President could query all the directors as follows: "Does everyone feel they have enough information to make a decision here about her or his vote?"

At this time I do not think you would be out of line to ask anyone who was absent from the executive sessions if they have questions and if so, are they of such a nature that the Board needs to adjourn to executive session. You might even put the director in question (call her "Smith") on the spot and say in front of those owners attending the board meeting, "Director Smith, you missed the interviews and executive sessions. Are you sure you have enough information?" I think the owners have a right to know the director missed the interviews and exec sessions, and I think you, as the presiding officer, may want to make sure all directors feel that they have enough info to vote. Then a vote on the motion should take place.

Fourth, in this instance I think that, while maybe this director should recuse herself, this is an honor thing. I feel this director is not breaking any law by not recusing herself.

Note that Justices of the Supreme Court sometimes recuse themselves. Sometimes a Justice does not recuse him/herself, but many in the public think the Justice should have. Sometimes a Justice misses oral arguments but still votes. No laws are being broken with any of these practices.

Fifth, by any chance do your bylaws limit how many meetings a director can miss before being thrown off the board? If this director is missing a lot of meetings and still voting on issues, this is its own violation of fiduciary duty. It's possible Va statutes have something to say on this as well.

Two cents.
JohnT38
(South Carolina)

Posts:768


10/02/2021 3:15 PM  
"When I pointed out that she had not taken part in any of the fact finding, interviews, or discussion and should abstain from voting, she became highly indignant and said she had a fiduciary duty to vote."

Didn't she have a fiduciary duty to attend the meetings regarding such an important topic so that she could make an informed decision?
KerryL1
(California)

Posts:8620


10/02/2021 4:25 PM  
I, too, would like o know if she's new. And if not, is missing meetings typical for her? Do you happen to know if there are obligations -- work; family care, causing her to miss these special meetings?

Is it your impression she'd read the proposals? They surely should offer a lot of info. Our current MC contract is 10+ pages including their addenda.

I just feel I need to know a little more. To vote to abstain seems like the correct action, but....??

BenA2
(Texas)

Posts:1040


10/02/2021 4:38 PM  
I would be surprised if anyone has not experienced a board member who is uninformed and votes anyway. Abstention is a personal choice. There are obviously times when a director should abstain but they are never required to. Voting is their right.
BenA2
(Texas)

Posts:1040


10/02/2021 4:53 PM  
I do not know if the board member had a good reason for not attending the interviews, but certainly she could have gleaned enough information from other members to make an educated vote. I think we must have all voted on issues that we did not have personal information on, instead depending on recommendations of others.
CathyA3
(Ohio)

Posts:2475


10/03/2021 5:47 AM  
I agree with the comments posted here.

My two cents' worth:

No one has the authority to tell a director that she may not vote. Pointed questions before the actual vote about whether she believes she has enough information to make an informed decision are fine.

Unfortunately you'll always get some uninformed voting, and that can happen even if the person sat through all of the relevant discussion.

(Related issue: why is this person not attending board meetings? Attending meetings and voting are a director's main duties, and according to some communities' bylaws, three unexcused absences are considered a resignation. Although, reading between the lines, it sounds like she's prickly enough not to go quietly.)
JohnC46
(South Carolina)

Posts:11539


10/03/2021 11:18 AM  
Posted By CathyA3 on 10/03/2021 5:47 AM
I agree with the comments posted here.

My two cents' worth:

No one has the authority to tell a director that she may not vote. Pointed questions before the actual vote about whether she believes she has enough information to make an informed decision are fine.

Unfortunately you'll always get some uninformed voting, and that can happen even if the person sat through all of the relevant discussion.

(Related issue: why is this person not attending board meetings? Attending meetings and voting are a director's main duties, and according to some communities' bylaws, three unexcused absences are considered a resignation. Although, reading between the lines, it sounds like she's prickly enough not to go quietly.)



I agree. Uninformed or not, she is a BOD Member and gets a vote.

In my association if you miss 3 BOD Meetings in a row with no prior excuse, you are automatically removed form the BOD.
DonnaR5
(Virginia)

Posts:138


10/03/2021 11:37 AM  
It has always been our practice that any board member who misses a board meeting abstains from voting to approve the minutes of that meeting. Because they weren't there, so they have no idea whether the minutes are accurate or not. It's an easy-to-understand principle.

Now, to answer people's questions, I did not tell the board member to abstain, I told her that I thought she should. When she insisted on voting, I didn't try to stop her. Because, as I said, I don't know of any way that rules of order allow that.

However, if there were such a provision, I would have invoked it, because it was a very consequential decision that shouldn't be voted on in ignorance. Approving minutes is trivial compared to hiring a management company, and somehow our standards were higher for the much less important vote.

The interviews with the companies were not conducted during board meetings. They were 1 1/2 hour interviews during search committee meetings over the course of 2 weeks.

The board member herself basically shows up for board meetings and never does anything else. She's been on the board for 5 years.

I personally think it was a bad faith move on her part, but I was just curious about what other people thought. It's not really a "what should I do?" question, because it's done.
HenryS7
(Arizona)

Posts:22


10/03/2021 11:51 AM  
Posted By DonnaR5 on 10/03/2021 11:37 AM
It has always been our practice that any board member who misses a board meeting abstains from voting to approve the minutes of that meeting. Because they weren't there, so they have no idea whether the minutes are accurate or not. It's an easy-to-understand principle.




From my perspective, this sounds like a made up rule that is not documented in bylaws or CC&Rs. It might be an easy to understand principle, but not something that should be done if you are following your documents well. In reality, all voting members of your board have the right to vote on meeting minutes where they were present or not.

KerryL1
(California)

Posts:8620


10/03/2021 12:10 PM  
Henry is correct. Per Robert's Rules of Order, the director votes whether present or not. Our board meetings are not required to follow Robert's, but we do use them as a default guide. Once, I'd missed a meeting at which an expert spoke. But he was not listed on the minutes as having participated. I moved to amend the minutes to include his name & topic title, which was approved.

Over the years, our board has often had one or two directors who did not prepare for meetings. Very annoying! They did attend these seldom but important executive session meetings about various contracts in formation. Given your director does not contribute much after five years on the Board, you also COULD ask her to resign.

Why do you suppose she continues to be reelected, Donna? Don't owners in your open meeting state notice she's deadwood at Board meetings?
AugustinD


Posts:1695


10/03/2021 12:41 PM  
Posted By HenryS7 on 10/03/2021 11:51 AM
Posted By DonnaR5 on 10/03/2021 11:37 AM
It has always been our practice that any board member who misses a board meeting abstains from voting to approve the minutes of that meeting. Because they weren't there, so they have no idea whether the minutes are accurate or not. It's an easy-to-understand principle.


From my perspective, this sounds like a made up rule that is not documented in bylaws or CC&Rs. It might be an easy to understand principle, but not something that should be done if you are following your documents well. In reality, all voting members of your board have the right to vote on meeting minutes where they were present or not.
I agree. Furthermore, identifying whether Minutes conform with (pretty much) Robert's Rules guidance (to record only start time; who is present; motions, seconds to motions, the vote on the motion; and time of adjournment) is easy. If a director who was absent wishes to vote to not approve Minutes because, say the Minutes do not conform with this format, I think this is her or his prerogative; legal right; and even a fiduciary duty.

Posted By DonnaR5 on 10/03/2021 11:37 AM
Now, to answer people's questions, I did not tell the board member to abstain, I told her that I thought she should. When she insisted on voting, I didn't try to stop her. Because, as I said, I don't know of any way that rules of order allow that.
I have not checked, but so far, I do not think, say, Robert's Rules disallows this director from voting. I was on a board where the secretary insisted on recording discussion pretty much word for word. The Secretary also put emphasis on things that were not emphasized, and de-emphasized things that were. I voted to disapprove every time, for various reasons. If I had been absent, I still would have insisted on voting on the Minutes.

You want to impugn this director's integrity for voting on this. If I knew more about why she insisted on voting, I might very well end up agreeing with you.

But I also feel that a board's creating a rule where none exists (with said created rule prohibiting a director from voting in situations like this) is not appropriate conduct.

The OP's question is interesting. I expect this thread will help others down the road.

DonnaR5
(Virginia)

Posts:138


10/03/2021 1:06 PM  
We have three-year terms, and she's been reelected once. Why? Because no one ran against her. It's like pulling teeth to get people to run for the board.

I recall one annual meeting years ago in which the president at the time scolded and shamed the attendees until finally one person volunteered to run. And wow, she was the worst board member I've ever seen.

Interesting comments on the voting to approve minutes whether present or not. We didn't enshrine it as a rule. I think someone once said "I'm abstaining because I wasn't there" and everyone followed suit after that.
JohnC46
(South Carolina)

Posts:11539


10/03/2021 2:25 PM  
Aug said:

I was on a board where the secretary insisted on recording discussion pretty much word for word. The Secretary also put emphasis on things that were not emphasized, and de-emphasized things that were. I voted to disapprove every time, for various reasons. If I had been absent, I still would have insisted on voting on the Minutes.

We unelected one Secretary as he insisted on doing this and much was his own leanings. He resigned after that.
BillC17
(Texas)

Posts:9


10/03/2021 2:40 PM  
HOA's are notorious for a gigantic amount of apathy. So many people will not lift a finger to participate in something that can have a definite and immediate impact on their lives.

Where I live the legislature recently updated the property code to forbid board members from also serving on the architectural review committee. A good move in my opinion, way too much concentration of power. But then we had to find some people who would be willing to serve on the ARC, and actually do the small amount of work.
MelissaP1
(Alabama)

Posts:10534


10/03/2021 2:43 PM  
How best to unvolunteer when forced to volunteer? Be the worst volunteer anyone has seen in their life. Basic way of getting out of doing a job you don't want. Seen it many of times and may have done it myself. Till this day no one asks me to make coffee at work... I don't drink coffee. Best you don't ask me to make you a cup...

I also agree with the others that just because you did not attend other meetings forgoes your right to vote. It just may not be an "informed" vote. Doesn't mean it's not a vote. I would not suggest this as a practice.

Former HOA President
AnnaJ1
(Maryland)

Posts:79


10/04/2021 10:39 AM  
Great point. I would say absolutely.
KerryL1
(California)

Posts:8620


10/04/2021 11:22 AM  
Thanks for explaining why your bench warmer is still on the Board, Donna. Lack of volunteers sure can be a problem.

I assume your board does not have to comply with Robert's Rules of Order (AKA RONR) except possibly for Meetings of the Members. but it comes in handy in cases that your Bylaws don't cover.
DonnaR5
(Virginia)

Posts:138


10/04/2021 1:15 PM  
Melissa, it was worse than that. She decided she actually liked being on the board and ended up president when most of the others left. She made up rules as she went along, even contradicting something she'd said only a month earlier (baffling new board members who were learning the ropes), signed up on our listserve under a false name and trolled with offensive posts, I can't even describe some of the stuff that went on. She did get voted off when someone ran against her. It was one of only two times in something like 15 years that a board seat has been contested.

Thank you, everyone, for your answers. One post made me think of another question that I have, and I'll start a new subject for that.
DonnaR5
(Virginia)

Posts:138


10/04/2021 1:19 PM  
Kerry, we do use Robert's, but I haven't referred to it recently. I don't recall it addressing the question of a board member being uninformed, though.
JeffT2
(Iowa)

Posts:628


10/05/2021 11:15 AM  
For perspective, the director can have a legal defense that the director relied on others. The following is from the Virginia Nonstock Corporation Act (emphasis added).

§ 13.1-870. General standards of conduct for directors
A. A director shall discharge his duties as a director, including his duties as a member of a committee, in accordance with his good faith business judgment of the best interests of the corporation.

B. Unless a director has knowledge or information concerning the matter in question that makes reliance unwarranted, a director is entitled to rely on information, opinions, reports or statements, including financial statements and other financial data, if prepared or presented by:

1. One or more officers or employees of the corporation whom the director believes, in good faith, to be reliable and competent in the matters presented;


2. Legal counsel, public accountants, or other persons as to matters the director believes, in good faith, are within the person's professional or expert competence; or

3. A committee of the board of directors of which the director is not a member if the director believes, in good faith, that the committee merits confidence.

C. A director is not liable for any action taken as a director, or any failure to take any action, if he performed the duties of his office in compliance with this section.

D. A person alleging a violation of this section has the burden of proving the violation.

BillD16
(Texas)

Posts:37


10/06/2021 4:16 AM  
Posted By DonnaR5 on 10/03/2021 11:37 AM
…I did not tell the board member to abstain, I told her that I thought she should. When she insisted on voting, I didn't try to stop her. Because, as I said, I don't know of any way that rules of order allow that.

However, if there were such a provision, I would have invoked it, because it was a very consequential decision that shouldn't be voted on in ignorance. Approving minutes is trivial compared to hiring a management company, and somehow our standards were higher for the much less important vote.

The interviews with the companies were not conducted during board meetings. They were 1 1/2 hour interviews during search committee meetings over the course of 2 weeks.

The board member herself basically shows up for board meetings and never does anything else. She's been on the board for 5 years.

I personally think it was a bad faith move on her part, but I was just curious about what other people thought. It's not really a "what should I do?" question, because it's done.



I agree that a) selecting a mgmt company is a Big Deal and b) it’s more than a bit sketchy for this person miss *all* of the interviews.

On the other hand, it’s possible that someone who takes the job seriously might have done the research (by talking to people, hitting the web, driving through neighborhoods managed by the various companies, etc) and thus may be an informed voter. I’m guessing this is not the case in your situation.

Kudos to you, though, for having the sheer unmitigated gall - and I mean that in the best possible way - to suggest to her that she abstain. In my short time serving on a Board, I have become very unhappy with people like this. The next time I hear “Oh, I just don’t have the time!” I’m going to suggest “well, if you don’t have the time to do the job, then perhaps you shouldn’t be here?”

Bill
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