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RESIGNATION LETTERS
QUESTION: If a
director resigns from the board, does a member have a
right to inspect their letter of resignation? We had three directors resign and I would like to know
why.
ANSWER: Yes, you have the right to
review letters of resignation. They are part of the
corporate records of the association.
DELINQUENT DIRECTORS
QUESTION: I am a board member in a new
HOA. We asked three current directors to resign due to delinquent
assessments. They refused to do so. One of them has just gone into
foreclosure. Is
there a California law that would force these board members to be
removed? Our bylaws do not address such an issue.
ANSWER:
There is no law requiring delinquent directors to resign. Your association needs to amend
its bylaws to require that all directors be current in
their assessments. Then, if they fall behind (by at least 60 days), they can be
removed from the board.
TERM LIMITS
QUESTION: How long can board members be on the board?
ANSWER: If your documents have no term
limitations, directors can stay on the board forever (as long as they remain alive and keep getting
elected). This can be changed by adopting term limits. However, there is
disagreement in the industry over the value of term limitations.
Strict Limits. Strict term limits that allow owners to
serve one or two terms and then forever bars
them from the board are unworkable. It is much too difficult to recruit members to serve on the board.
Also, what happens when everyone in the association has served on the board?
Accordingly, strict limits should not be adopted.
Flexible Limits.
A more common term limit is one that allows
directors to serve two terms and then requires them to step down for a
year. This allows other owners the opportunity to serve on the board
without permanently barring seasoned directors from serving at a later
date.
Even this kind of limitation can be problematic if no other owners are
willing to
serve on the
board. To avoid this problem, term limitations should only take effect
if
there are people willing to run for the board.
STACKING THE BOARD
QUESTION: Our bylaws state that if a director fails to
attend a specified number of regular board meetings, then that director is
deemed to have resigned from the board. Our bylaws allow the
remaining directors to appoint someone to fill the vacant seat. It seems to
me that filling a vacancy by appointment gives the board the opportunity
to "stack" the board with like-minded directors.
ANSWER: It is quite common that bylaws
allow for the appointment of directors. Although this creates the potential for
uniformity of approach to problems, that's not necessarily bad. Also, appointmentsare never permanent since
there is always another election just around the corner.
Amending your bylaws so that all vacancies are filled by special election may
satisfy your concern but it creates unnecessary cost since the association must
solicit nominees, print and distribute ballots, and hire inspectors of election
every time there is a vacancy. It makes more sense to appoint someone to fill
the seat until the next general election.
READER COMMENTS
On Protecting Volunteers
What I have done for my HOA and my union is to have the
board pass a resolution that states, "In accordance with Labor Code section
3363.6, all volunteers are considered to be employees for workers'
compensation." I much rather have volunteers availing themselves of workers'
compensation rather than suing the association for negligence or board members
for intentional torts. -Glen Grossman, State Bar Certified Specialist,
Workers' Compensation
Very truly yours,
Adrian Adams, Esq.
Adams
Kessler PLC
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