Board disputing all rules, doing as they wish ...

[SPI]

ISSUE 1:

In the notice and agenda they sent (signed by the 5 officers and not discussed in any documented meeting), they restricted the rights to speak or vote to ONLY members that have paid their 2020-2021 dues. I clearly object on the premise that the bylaws do not strip the right to speak and the only reason they would not be permitted is if they have met the conditions to have their membership terminated (see below). Without an agreed upon due date, I have been advised that the delinquency period cannot be assumed to have started other than the last day of the Fiscal Year in which it applies, or Sept 30, 2021. In addition, there would be no reason to include Article III, Section 4 F to strip voting rights from members "not in good standing" following a meeting when one would not be held again for 6 months if they were to lose that right with the loss of membership after 90 days from the beginning of the Fiscal year as they have claimed. My argument is that the voting condition's intent as written is to only strip voting privileges from members who have not paid dues for the current fiscal year until they have either paid, or membership is terminated 90-days after the fiscal year they did not pay. I am also arguing that these members ARE members and DO have a right to speak at the meeting until membership has been terminated. Please advise.

ISSUE 2:

The officers have also limited speech to 3 minutes per topic at the upcoming special meeting and declared they may cancel the meeting if they feel the needs arises. I argued that the MEMBERS called the meeting by petition. My understanding is that the membership is superior body to the Board they elect, therefore the Officers and Board does not have the authority to limit speech on their superior body, nor may they cancel they meeting based on "Covid" when their own meetings are being held face-to-face and attendance is meeting the quorum count of a regular membership meeting! In addition, my understanding is the limit on speech is 10 minutes and may only be changed by the Assembly if 2/3 of the members vote to do so. Please advise.

 

BACKGROUND:

My State Statutes dictates "except as provided in the articles of incorporation or bylaws, special meetings of the members may be called by: ... (e) The holders of at least 5 percent of the voting power of a corporation when one or more written demands for the meeting, which describe the purpose for which the meeting is to be held, are signed, dated, and delivered to a corporate officer;" The bylaws state, "Other special meetings of The Association membership may be called after seven (7) days notice, as deemed necessary by a majority of the Board, or by request in writing of ten (10) percent of the membership to the Secretary."

I wrote and had 26 other residents of the association sign the petition, then I presented this to the Recording Secretary on Jan 12th. There were 171 members at the time of the petition being submitted and the board acknowledge that 23 members that signed had paid their 2020-2021 dues. Since then, the Board has tried to disqualify as many of the 23 individuals that signed by either assessing "fees" on them (which is not mentioned or authorized in any of our governing documents), disputing payment of dues, or in my case, returning part of the payment and claiming it wasn't received or they cannot take coins, but the balance is 7 cents (they also refuse to write receipts or take checks). Otherwise, the meeting was called for Feb 23.

I am also aware that you will probably need the language of our bylaws to make a better opinion:

Article III, Section 1

A. The business and affairs of The Association shall be conducted by an elected Board of Directors (hereinafter referred to as the Board), which shall meet at least once per calendar quarter or whenever deemed necessary by the President or a majority of the Board of Directors. The board shall consist of the officers and committee chairmen elected by the members in accordance with these By-Laws.

B. The Board shall control the property, both real and personal, of The Association and be responsible for overall operations and administration. Committees shall carry out their respective responsibilities under the direction of the Board. The Board shall authorize the expenditure of all funds required for the development, maintenance and operation of all Association facilities and activities.

Article III, Section 4

C. Meetings of The Association membership shall be conducted in accordance with parliamentary procedure as specified in Roberts Rules of Order, Newly Revised.  (yes, its underlined in the Bylaws)

F. At all meetings of The Association, there shall be one vote allocated to each property in [Community], which may be exercised by members in good standing. Good standing means that all dues are current as of ten days prior to the meeting at which a vote may be required, and also that there are no other assessments, fines, judgments, or other contractual obligations owed. In the event that the nominal owners of a property cannot present a unified or majority vote on behalf of the property, it shall be deemed that no vote was cast.

Article IV, Section 1 Membership in [Association] shall be available and restricted to all adult property owners upon payment of dues.

Section 2 All members will pay their dues as recommended by the Board and approved by the membership.

Section 3 - Termination of Membership

A. Termination of membership shall be automatic upon sale of residence in the [Community], or upon delinquency by a voluntary member of ninety days.

B. Membership may be reinstated for the foregoing cause of termination upon paying back dues for the delinquent period.

*note: I removed identifying information for the association and community only

To date, they have not been able to find or produce any records indicating an action under Article 4, Section 2 has ever occurred other than to set the dues at $125. I submitted an additional request for records to them on February 6th. They have not been able to produce anything that states membership dues are due by Oct 1, the beginning of the Fiscal year, nor do they ever start collection/acceptance of dues until that date. This has raised the dispute of when the dues are actually due and when the "delinquency" period actually starts.

Its also important to note that they have cancelled (or indefinitely postponed) every meeting of the Association in 2020 and are attempting to cancel the Spring meeting already. The 90-day postponement of the September Semi-Annual meeting was never held. The election was held only after they were forced by threat of legal action to hold a "special meeting" for the purpose of the election and budget.

[Guest Puzzling]

There seems to be a lot wrong there and I was puzzling over some of your bylaws, 

What kind of organization is this? It seems to be some kind of mix of a HOA with voluntary members added (article IV 3A mentions  voluntary members) 

I don't think that article III, 4 F is legal ,have lawyer looking into that. Or have yourself a look at the website of the homeowners protection bureau www.hopb.co for your state laws and other legal information over HOA s. 

That is it for now I guess others will also give their due.

 

 

[SPI]

We are a Civic Association (also known as Community Association in some areas), not a Homeowners Association. We are governed by a separate chapter in our States statutes as HOAs and Condos.

State law on voting: "Members are not entitled to vote except as conferred by the articles of incorporation or the bylaws."

Edited February 13, 2021 at 08:12 PM by SPI

[Rob Elsman]

Are they doing as they wish, or are they doing what those who elected them wish?

[Josh Martin]

1 hour ago, SPI said:

I am also arguing that these members ARE members and DO have a right to speak at the meeting until membership has been terminated.

It is not necessarily correct that members "have a right to speak at the meeting until membership has been terminated." It is correct, however, that members have a right to speak unless their rights have been suspended by 1) disciplinary procedures in the bylaws or, if the bylaws are silent, in Ch. XX of RONR or 2) by a specific provision in the bylaws.

Members who are delinquent in their dues do not lose their rights as members unless the bylaws so provide, and in such circumstances, they would lose those rights under the timeline and circumstances specified in the bylaws.

I am inclined to agree that, based upon the facts provided, the rules in question do not appear to strip a member of their right to speak based upon delinquency in dues. Ultimately, however, it is up to the organization to interpret its own bylaws.

"A member of a society who is in arrears in payment of his dues, but who has not been formally dropped from the membership rolls and is not under a disciplinary suspension, retains the full rights of a voting member and is entitled to vote except as the bylaws may otherwise provide. (See also 1:13n3, 56:19.)" RONR (12th ed.) 45:1

As to the question as to when a member loses the right to vote due to delinquency in their dues, the bylaws appear to be clear that a member is not able to vote if the member is not current in their dues as of ten days prior to the meeting. The date by which the dues must be paid in order to be current in dues, however, is not clear from the rules presented. I leave this question to the society's judgment. I would note that nothing RONR suggests that this date would necessarily be the last date of the fiscal year. Rather, RONR suggests that the bylaws should clarify this matter. It does not provide any "default" date in the event the bylaws are (unwisely) silent on this subject.

"Unless the financial obligations of members are especially complicated, a section of this article should also state: (3) the required fees and dues, the date(s) when payable (whether annually, semiannually, quarterly, etc.), the time and prescribed procedure for notifying members if they become delinquent in payment, and the date thereafter on which a member will be dropped for nonpayment of dues." RONR (12th ed.) 56:19

1 hour ago, SPI said:

My understanding is that the membership is superior body to the Board they elect, therefore the Officers and Board does not have the authority to limit speech on their superior body, nor may they cancel they meeting based on "Covid" when their own meetings are being held face-to-face and attendance is meeting the quorum count of a regular membership meeting! In addition, my understanding is the limit on speech is 10 minutes and may only be changed by the Assembly if 2/3 of the members vote to do so.

I agree that the officers and board lack the authority under RONR to cancel a properly called meeting. I also agree that they lack the authority to limit debate, and that the limit on speech is two speeches of ten minutes on each debatable motion unless the assembly changes this limit by a 2/3 vote. To the extent that the officers or board claim to have such authority, it would need to come from a higher-level rule such as the bylaws or procedural rules in applicable law.

I express no view on the merits of whether the meeting should or should not be canceled on the basis of public health concerns, as that question is beyond the scope of RONR and this forum.

Edited February 13, 2021 at 08:33 PM by Josh Martin

[SPI]

Well, considering that the petition was signed by the members as required under the bylaws AND their response said, "against the Board's wisdom," its safe to say their own opinion. Also, RONR provides a democratic process for members to state what they wish, so the purpose of my arguments have been why not allow them to speak?