ROGUE TREASURER

QUESTION: By a vote of 3 to 2 my board approved a bid to repair a fence. The treasurer voted against it. A week later he asked our management company to hold off on the repair. At our next meeting I was told that the treasurer has the right to stop motions approved by the board. Is this true?

ANSWER: A treasurer does not have veto power. His vote is the same as every other director's. He does not have special powers that gives him the right to overrule the board's decision and give contrary instructions to the management company. However, if cash flow is a problem, he can put a temporary hold on the work until funds become available, but he cannot stop the repairs. The treasurer can also ask the board to reconsider its decision if he has new facts that were not considered when the board made its decision. Absent that, he must step aside and allow the repairs to proceed. If the treasurer continues to interfere with board decisions, he should be removed as treasurer.

RECALLED DIRECTORS
RUN FOR BOARD

QUESTION: We are voting to recall the board of directors. Two of the directors we are recalling have there names on the election ballot. Are they allowed to run again when we are recalling them?

ANSWER: Yes. As long as they meet the qualifications of a director, they can nominate themselves and run for the vacated seats.

MEMBER OPINIONS IN
NEWSLETTERS

QUESTION: Do homeowners have any rights when it comes to having their views published in the association's newsletter?

ANSWER: Not really. Just like your local newspaper, you cannot demand that your views be published in the newspaper. The editor can pick and choose which "letters to the editor" are published. Members have other avenues for making their views known. They can (i) speak during the open forum at board meetings, (ii) publish and distribute their own newsletter, and (iii) set up a website to publish their views.

Campaign Exception. There is an exception. If the newsletter is used to campaign for or against a matter being voted on by the membership, the association must provide equal access to all members advocating a point of view on the issue.

BYLAW LIMITATIONS
ON OFFICES

QUESTION: Our bylaws include a statement that "Any number of offices may be held by the same person, except that neither the president nor the vice president shall hold any other office." Some members of the HOA believe that this precludes board members from holding the position of President or Vice-President. Others believe that this only precludes the President and Vice-President from also holding the positions of Secretary or Treasurer. The phrase "... hold any other office." seems to be inconveniently vague in this regard.

ANSWER: Your bylaws do not preclude board members from being officers. It means the president cannot also be secretary or treasurer.

MENTALLY INCOMPETENT?

QUESTION: At our annual meeting, there were 3 vacancies and 4 candidates. Before the results of the election were read, one of the directors resigned, with the understanding that the 4th candidate would also be seated to that vacancy. The board (other than me) refused to seat the 4th candidate, stating that the board has the right to appoint a director to that position and that the 4th candidate was mentally incompetent.

ANSWER: If one of the candidates withdrew before the election results were announced, then the remaining three directors automatically fill the three open positions. If one of the directors whose seat was not up for election resigned, the board can appoint a replacement to fill the seat (unless your governing documents state otherwise). Even though the resignation took place at the annual meeting, the board is not required to appoint the fourth candidate to fill the vacated seat.

Mentally Incompetent. The board does not have the right to decide for itself who is mentally competent to serve as a director. That is a decision for the courts to make. As a rule, homeowners who are not competent to serve on boards are elected to Congress.

UNAUTHORIZED
PUBLICATION OF MINUTES

QUESTION: Does the management company have the right to publish motions, actions and votes by the board before the minutes have been read and approved by the board of directors? Aren't minuets only "official" when they are approved by the board?

ANSWER: Without board authorization, management companies do not have a "right" to publish draft minutes. Minutes in draft form must be made available for membership within 30 days of the meeting (Civil Code §1363.05(d)) but it’s not a good idea to actually publish them until the minutes have been reviewed and approved by the board. Draft minutes sometimes contain errors that are corrected when the board reviews them. Once they have been approved, the minutes should be communicated to the membership in some fashion--either by summarizing them for the newsletter, posting them on the association's website, or mailing them to the membership.

CERTIFICATE OF INSURANCE

Feedback. When hiring a contractor, "proof of insurance" is not enough. Association's should insist on a certificate of insurance directly from the contractor's insurance agent naming the association as an "additional insured" on the contractor's policy which also provides notice to the owner in case of imminent cancellation. Attached to the cert must be an "Additional Insured" endorsement. To rely on the contractor to show the owner a copy of a policy declarations page does not guarantee that the insurance is actually in force and does nothing to protect the owner in the event of accidents, defective workmanship and resultant damage. -Stephany Yablow, Esq.

BOARD PRAYER

Feedback. I read the commentary on prayer with amusement: Does the questioner really feel that what a particular HOA does is important to God?  -FG

COMMENT: God might, since he lives in a gated community himself (“Heavenly Gates”). -Adrian