Bad Board Members
Q: Our HOA board has been in place, with a few exceptions, for about 10 years. The same people keep running and getting elected and the same things don’t get done year after year. The only people who get elected who are new have a single agenda of their own and aren’t really there to serve the community. Also, the board holds some meetings at which there is no owners’ forum. How do we stop this abuse of power?
A: The only reason these folks are elected is because the members voted them into office. Presumably the majority of the voting members think they are doing a good job. On the other hand, perhaps those perennial board members are simply proficient at collecting proxies from apathetic owners who are their friends and supporters.
Community associations have often been called “mini governments”. The “elected officials” are empowered to make rules and decisions that affect the lives of all who live in the community. In associations, as in governments, there are checks and balances. There are bylaws which spell out the ability of the members to remove a director who is not doing a proper job. Additionally, at each election there is the possibility of removing those directors who are not doing the will of the members and replacing them with new candidates.
You may inquire as to how can you can screen candidates to determine who is worthy of being elected. Generally documents contain no prequalifying requirements other than the requirement that the candidate be an owner. How can one know if a candidate has a personal agenda or just wants to satisfy his ego by being a director of the association?
We submit that you should create some more formal election rules. A nominating committee may be required by your bylaws. If so, insist that it be activated. This committee is to seek out qualified and interested candidates. “New blood” is generally good for the health of an organization. This would involve the submission of resumes, or, at the least, completion of an information form supplied by the Association, for all board member candidates. These resumes would be mailed out to all members with the notice of the annual meeting. In this manner the members will always know something about the candidates. You could even have a “candidate night” where board candidates appear at an informal meeting of the owners to answer questions about their qualifications and agendas.
If new board members are needed in your community it is incumbent on you to enlist the aid of other members to help you get new candidates elected who will implement new election procedures which will insure that you have the opportunity to elect the very best candidates who offer themselves for election to “public service”. This is a very worthy task and once it is accomplished you are on your way to creating a better managed community.
As to your question about board meetings without an owners’ forum, the Virginia Property Owners Association Act is clear that notice must be given or conspicuously posted for all board meetings and that an owners’ forum must be held. The owner forum at a special meeting may be restricted to comments on the specific agenda for that meeting. We do think it is appropriate for the board to include in the meeting notice of a special meeting that it is being held for a particular purpose which is permitted to be discussed in a closed session. Many special meetings seem to be called for purposes which are covered by the Code provision which allows for discussion of certain topics in closed session. While the ultimate motion to take action, if any is made, must be made in an open session, at least the members would be informed that they would not be able to listen to any discussion at the meeting. The laws governing meetings are quite detailed and, consequently, are not widely understood by many board members who, in many cases, have not read them. An organization known as the Community Associations Institute has a local chapter which sponsors frequent informational seminars on association topics which are intended for homeowners in associations, and especially board members. You can learn more about this organization by looking at the web site at www.sevacai.org.
It appears the president of our HOA or the management company, is handing out due process hearing letters for architectural related issues without consulting the rest of board. Shouldn't the whole board be required to discuss the merit of issuing a due process hearing letter? As well, shouldn't the discussion to issue due process hearing letters be done in an open meeting?
RESPONSE:
Generally speaking, the decision to start violation proceedings against owners for alleged architectural infractions would be an official action taken by the board as a whole, and would thus be something discussed by and decided by the entire board. It is very important, however, that you carefully review the description of committees and procedures in your Declaration, Bylaws, and Rules/Regs regarding architectural violations, because sometimes the governing documents provide for an architectural committee separate from the board of directors, or the documents could theoretically allow for the President to initiate violation proceedings.
Another important consideration is the possibility that this decision was made in "executive session." As the Condo Act provides, any official actions taken by the board are to be made only in properly convened meetings, which are generally open to owner attendance. HOWEVER, section 55-79.75(C) of the Condo Act permits that the board can go into executive session to meet privately to discuss certain matters, one of which is action to be taken against owners for alleged violations of the governing documents.
The foregoing explanation might explain why owners had no previous knowledge of the commencement of due process hearings, but it would not explain why only the President is making these decisions and not consulting with the other board members. If you are not on the board, consider the possibility that the board member who told you that they weren't consulted is playing politics and trying to deflect criticism from his/herself, which is not unheard of when it comes to sensitive matters like architectural violations....after consulting with your property manager, you may discover the facts to be otherwise.
Greg Montero
I've stumbled across your website while doing a search regarding a friend of mines' complaints regarding board of director and management issues. I'm no lawyer and don't live ina association, so I want to ask some questions, and get my friend to review your site. My friend said he has looked at a Virginia Homeowners Property Act and requested meetings notices, but is never mailed or emailed any. He has also requested in writing and at board meetings copies of the meeting minutes, and said it was ok if they would just be emailed to him, but again was refused. There were magazine subscriptions purchased with money from the association, and the manager would not allow him to view them or would even tell him what magazines they were. The website that the association has will not allow people to communicate or meet up with each other. In addition, apparently there are questions regarding fairness of elections, conflicts of interests with board of directors and the management, money transfers between operating funds and reserves. He says that the management does not enforce the same rules the same way amongst the homeowners, and that the board never takes action on this. There's also something about paying for cell phones and medical expenses of employees, and these things the board spends money on rather than decaying signs, grass menagement.
It appears to me he has read some of the laws you talk about, but how do you go about getting any of this enforced? This is a huge association with something like 1000 people, so its not like you can gather everyone together and figure this all out. The other concern is that a number of people have apparently voted people in just because its their buddy, etc.
RESPONSE: If either you, or your friend, have not had any success with sending certified letters to the Board and management on any of the issues, and if your friend has also not had success in appearing at Board Meetings and Annual Meetings, or there are none, then you have little choice left but to contact an attorney. The attorney needs to be in your area and should specialize in community association law. Good Luck-
Jeanne S. Lauer