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Board candidacy: Non-member is attempting to run for board election, articles of incorporation prohibit it

Guest Jim Pressler

By Guest Jim Pressler
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Guest Jim Pressler

Guest Jim Pressler

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I am an owner in a timeshare governed by Louisiana HOA laws and non-profit laws.  Our By-laws state: "Roberts' Rules of Order (latest edition) shall govern the conduct of Association proceedings when not in conflict with the Amended Declaration, the Articles of Incorporation, or these Amended By-Laws or with the laws of the State of Louisiana."  Only people who are current owners in our timeshare are considered members of the association.  

My question to this group is:  "Should someone who is NOT a member of our association be permitted to seek election to our board of directors?" I have tried to include all pertinent details below.

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A former owner who served with three of our current board members is seeking election to our board of directors, and our current board has (so far) approved this, listing him as a candidate in owner communications. They defended their decision by noting that our By-Laws state:  "The affairs of the Association shall be managed by a Board of Directors consisting of such number of Directors as may be elected from time to time by the members, provided that the Board shall consist of not less than three (3) persons, unless there shall be fewer than three (3) members, in which case there need be only as many Directors as there are members. A member of the Board of Directors need not be a Unit Owner." 

Our board is awesome, so I'm not ascribing/assuming bad motives here.  I believe they are incorrect because our Articles of Incorporation state:  "Directors shall be elected at the annual members' meeting in the manner provided by the By-Laws. All Directors other than the initial Directors named herein must be unit owners or co-owners. Directors may be removed and vacancies on the Board shall be filled as provided by the By-Laws."  I do NOT see any other relevant sections in our CC&Rs.  I believe Articles of Incorporation supersede the By-Laws and pointed that out to the Board.  Am I incorrect?

Even if we assume that the conflict between Articles of Incorporation and the By-laws is (somehow) settled in favor of the non-owner candidate, there are additional issues:

  • Misleading communications to owners:  The entirety of the Board's communication to owners (in this and all prior years for which I could find records) speaks ONLY of owner candidacy.  There is no mention anywhere of non-owner eligibility.  In addition, until I flagged the issue, the candidates were improperly labeled as "12 owners" in the listing of candidates.  (In fairness to the non-owner candidate, he made it clear in his candidate statement that he is a former owner, so any voting owner who read the candidate statements would see that.)

  • Eligibility for candidates is more restrictive for owners than non-owners:  The Board's call for candidates states "All owners are encouraged to consider running to be an Association Board member.  Board candidates must be current with all assessments and fees by May 1, 2024. No special qualifications are required other than a strong dedication to supporting the Association."  Note:  To be an owner, you must be a person who is of legal age to enter into a contract, and you must have contact information on file with the association.  The further restriction of being current on assessments and fees establishes a type of financial test.  In contrast, NO requirements, definitions, or restrictions have been established/communicated for non-owners to be considered for candidacy.

  • No precedent/no vote/no decision:  I find no evidence in our association's decades-long history (minutes, legal opinions, election records, etc.) to indicate a non-owner has ever been allowed to seek election to our board, nor to indicate this scenario has been considered/discussed/voted upon by this or prior boards.  Had any such decision been noted in the minutes, owners would have had a chance to invite their friends and family to seek election.

  • Use of association resources for the benefit of a non-member:  As part of our election process, candidate statements as well as responses to a set of questions are mailed (and emailed) by our association to all owners of record at considerable expense to the association.  Candidates are NOT charged for this. Even if we assume the non-owner is allowed to seek election, I believe there needs to be a formal board decision about "promoting" the non-owner via our materials.  If the non-owner wants to pay out of his own pocket to communicate with owners, that's a different story.

  • Access to our secure owner website:  To facilitate the election process, candidates are invited to interact with owners via our secure owner website in a section dedicated to the election.  Only owners have access, and we are able to ask questions of the candidates.  The candidates can also post whatever other content they wish.  In response to my objection to a non-owner having access to our owners-only website, the Board had the election section of the website made public (i.e. no login required).

Thanks in advance for your thoughts!

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Rob Elsman

Rob Elsman

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Since the question being asked seems to me to involve a legal document (the Articles of Incorporation), I think we ought to note that this is really a legal question that may need the help of an attorney familiar with the corporation law of the state in which the association is incorporated (probably Louisiana, but maybe not).

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Richard Brown

Richard Brown

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On 5/11/2024 at 10:38 AM, Joshua Katz said:

the question gives a scenario where both the bylaws and the articles do, and they conflict. The questioner would like to know which prevail in the conflict. And RONR answers that. 

I agree. I think the question is appropriate for this forum. I also agree with Mr. Esman that ultimately this is a legal determination, but RONR does address the OP’s question.

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Joshua Katz

Joshua Katz

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What the articles requre is a legal question, I agree. Even if it seems rather obvious here. But I think it is false to say there is nothing here that pertains to RONR. (One might ask why RONR tells us articles of incorporation outrank bylaws if questions involving articles are always legal questions requiring an attorney. Not me, but one.)

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Atul Kapur

Atul Kapur

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The qualification of persons seeking office are spelling of names is not a matter of parliamentary law.  The common parliamentary law and RONR (12th ed.) do not impose any particular rules on this matter qualifications on candidates.

As to the price of consonants, I suggest you seek the advice of Pat Sajak.

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