Board Agenda and Annual Election Tie
I have a couple of miscellaneous HOA questions:
1) Does an HOA Board President control a Board meeting agenda? If the agenda is disseminated to Board members a few days prior to the meeting for review and a Board member asks that a certain issue be placed on the agenda, must the President place that item on the agenda or can the President censor item he/she doesn’t wish to discuss? If the President doesn’t include that item on the agenda, can a Board member still raise the issue at a Board meeting, or can the President censor the Board member by saying it’s not on the agenda?
2) Suppose there are 6 candidates for 3 open positions on a Board and at the annual meting the property manager announces there is a tie for third place. How is the tie broken?
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Nick,
Neither the planned community act nor the condominium act specifically addresses this issue. I have proposed legislation this year to make this clear in the applicable statutes. What is clear is that the open meeting laws for public bodies do in fact limit any and all discussion in open meeting to item specifically included and identified in the agenda for that meeting. While i’m not an attorney there is legal precedent that if a statute is silent on an issue one can go to similar statutes for guidance, even if the two statutes are directly cross referenced. See Attorney General opinion 97-012. I will say that there was never an legislative intent to make the very strict and restrictive open meeting laws for
As for the president controlling the agenda, this is the typical process and power given to the board president. They mostly ask for any request from the other board members but are not required by any law or rule to include those suggested topics. Having said that i will say that ignoring he request of other board members is highly suspect and the board should consider calling for a vote to remove that board member from that office. He would still be on the board but no-longer the president. Remember it was the board that elected the officers not the members and the board can remove any board member from any office by a vote of the board.
As for the election process your Bylaws should have guidance on that issue it is not and should not be addressed in law. If the bylaws are silent on that issue than the board has many options, they can run a run-off election between the two candidates for the last position. They also could if the bylaws allow, have both the candidates added to the board at least for one term. This would most likely cause the overall board population to be an even number which could cause issues in the future, with quorum and tied votes of the board.
What cannot happen is anyone on the board deciding who is the elected board member, for any reason.
Dennis
This is exactly what happened in our last elections. The board came back post vote and deemed a member of my household ineligible to be elected because he’s on a beneficiary deed and they decided that wasn’t sufficient. Never mind that he’s been allowed to vote in prior meetings. It was a retroactive eligibility decision just keep someone off the board. Would anyone else consider this electoral malfeasance on the boards part?
Shelley
If I understand what you were saying that an individual ran for a board position was put on the ballot and after the individual was elected by the members the board determined that he was never qualified to be on the board because of his ownership status. Does he own the home in your community or is he the owner of record? I don’t understand what you mean by beneficiary deed. Did the original owner die and leave the home to this individual or this individual and other? If that is the case it would seam to me that he was the new owner
Quite frankly it is the responsibility of the board to determine the qualifications of any board candidate prior to the election. Once elected by law the only way to remove an elected board member is via petition from the members to do so. The bottom line is if they are elected by the members they can only be removed by the members. While most communities have qualification requirement for board members that test should be determined prior to placing that individuals name on the ballot. the only exception to this general expectation is if the candidate was a write in candidate that was not previously screened by the board. As I always state I’m not an attorney but if I was in the individual homeowners position I would challenge the action of the board by petition to ADRE as a violation of ARS 33-1813.
Dennis