Not in the miuntes, did it really happen

[cranneberry]

In an HOA membership meeting in 2016 a motion was made for a 5 person board and another motion was made for terms for a 5 person board, one 3 year term, two 2 year terms and two 1 year terms. At the meeting in 2017, 2 seats were up for reelection, yet both people were given 3 years terms. When I questioned the HOA manager about the terms and suggested a legal opinion be sought, she stated a legal opinion was given in the 2016 meeting that going forward each person elected would receive a 3 year term. There is nothing in the minutes about a legal opinion being given nor is there anything in the minutes referring to any subsequent elections. There is mention of a legal opinion for other matters. Would I be correct in stating that if there was no mention of the legal opinion in the minutes, then it basically didn't happen?

[Joshua Katz]

Well, no - if the minutes are incorrect you correct the minutes, you don't (and can't) change what actually happened.  However, it's not clear to me what was supposed to have happened.  It looks like (maybe?) there was a bylaw amendment setting the terms of office.  Then the bylaws weren't followed.  The response should be a point of order, not questioning the HOA manager.  The chair might rule the point of order well taken, or might rule that, since there's a contradictory applicable procedural law, that applicable procedural law is to be followed instead.  Either decision can be appealed.  Any ruling is made by the chair, potentially appealed to the assembly - not the HOA manager, and not a legal opinion.  So far as RONR is concerned, random letters from attorneys do not change rules - it requires a point of order and a ruling by the chair to say that there is an applicable procedural law.

[Greg Goodwiller, PRP]

The minutes are the record of the meeting, but unless a legal opinion resulted in some action, it would not necessarily be recorded in the minutes, despite the fact that you say other such opinions were.

Regardless, I'm not sure what relevance such an opinion would have. The question is, what do your bylaws say about the creation of a Board (it must be authorized in your bylaws, according to Robert's Rules)? It sounds as though the 2016 meeting attempted to create three classes of members, one or two of whom would be elected each year, for terms of three years, in which case electing two individuals for a new three year term (replacing two members who were given an initial term of one year in order to create the "rotation," would be entirely appropriate. But again, it depends on what your bylaws say, and what the minutes of the meeting say.

 

[Hieu H. Huynh]

And see FAQ #15.

[cranneberry]

7 minutes ago, Joshua Katz said:

Well, no - if the minutes are incorrect you correct the minutes, you don't (and can't) change what actually happened.  However, it's not clear to me what was supposed to have happened.  It looks like (maybe?) there was a bylaw amendment setting the terms of office.  Then the bylaws weren't followed.  The response should be a point of order, not questioning the HOA manager.  The chair might rule the point of order well taken, or might rule that, since there's a contradictory applicable procedural law, that applicable procedural law is to be followed instead.  Either decision can be appealed.  Any ruling is made by the chair, potentially appealed to the assembly - not the HOA manager, and not a legal opinion.  So far as RONR is concerned, random letters from attorneys do not change rules - it requires a point of order and a ruling by the chair to say that there is an applicable procedural law.

There was no amendment to the bylaws only a motion. My contention is that by allowing the 2017 board members to both have a 3 year term, it is going against the motion made in 2016. When I questioned the manager, the response I got was that there had been a legal opinion offered. As that legal opinion was not in the minutes, (which I understand shouldn't have been) yet other legal opinions were, shouldn't the minutes then have included all of them? I was at the meeting in question and do not recall an opinion being given on the terms. Or am I off base on this?

[Gary Novosielski]

If the terms of office are stated in the bylaws, then the only valid way to change those terms is with a bylaws amendment.

Any other action that purports to change the bylaws is null and void.

[SaintCad]

UNLESS the three year terms are mandated by law for HOAs and that was what the legal opinion was.  Since this would automatically nullify that provision in the bylaws there would be no record of changing the bylaws.  That's my best guess.

[Joshua Katz]

19 hours ago, cranneberry said:

There was no amendment to the bylaws only a motion. My contention is that by allowing the 2017 board members to both have a 3 year term, it is going against the motion made in 2016. When I questioned the manager, the response I got was that there had been a legal opinion offered. As that legal opinion was not in the minutes, (which I understand shouldn't have been) yet other legal opinions were, shouldn't the minutes then have included all of them? I was at the meeting in question and do not recall an opinion being given on the terms. Or am I off base on this?

Well, the reason I presumed it was that, most likely, such a motion has no effect since it probably violates the bylaws.  As I said, I don't see what the manager has to do with this - the manager works for the board.  Legal opinions shouldn't be in the minutes, and included one isn't remedied by including more.  Again, this should all be handled at the meeting, not in discussions with the manager, and the resolution has nothing to do with what is included in the minutes, but rather with the chair's (and the assembly's) understanding of the applicable law, applicable bylaw, and the motion.