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Jane Doe Deer
Jane Doe Deer, Attorney
Category: Business Law
Satisfied Customers: 3864
Experience:  Atty since 1986. Real estate, tax, and other business law questions
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I am a member of the Board of Directors for a Texas HOA Association

Customer Question

I am a member of the Board of Directors for a Texas HOA Association (incorporated as a not for profit in Texas).
We removed our secretary from the board of directors for failure to do her job. Were we wrong in thinking that we had the authority to do this?
Bylaws Article II Definitions, Section 8. : Member” shall mean and refer to those persons entitled to membership as provided in the Declaration (Declaration of Covenants, Conditions and Restrictions – CCRs)
CCRs Article III Membership and Voting Rights, Section 1 – Every owner of a lot which is subject to assessment shall be a member of the Association……

CCRs Article VIII General Provisions Section 7 Disputes – Matters of dispute or disagreement between Owners with respect to interpretation or application of the provisions of this Declatation or by the By-Laws, shall be determined by the Board of Directors, which determination shall be final and binding upon all owners.

ByLaws: Article IV Board of Directors: Selection : Term of Office
Section 1. Number. The affairs of this Association shall be managed by a Board of seven (7) directors, who are members of the Association.

ByLaws: Article IV Board of Directors: Selection : Selected from Association members by vote at the annual meeting.

ByLaws: Article IV Board of Directors: Section 3. Removal. Any director may be removed from the Board with or without cause, by a majority vote of the members of the Association. In the event of death, resignation or removal of a director, his successor shall be selected by the remaining members of the Board and shall serve for the unexpired term of his predecessor.

ByLaws: Article VII Power and Duties of the Board of Directors: Selection 1: Powers c.) exercise for the Association all powers, duties and authority vested in or delegated to this Association and not reserved to the membership by other provisions of these ByLaws, the Articles of Incorporation, or the Declaration. d) declare the office of a member of the Board of Directors to be vacant in the event such member shall be absent from three (3) consecutive regular meetings of the Board of Directors.

ByLaws: Article VII Power and Duties of the Board of Directors: Selection 2: Duties. It shall be the duty of the Board of Directors b) supervise all officers, agents and employees of this Association, and to see that their duties are properly performed

ByLaws: Article VIII Officers and their duties: Selection 2:Election of Officers. The election of officers shall take place at the first meeting of the Board of Directors following each annual meeting of the members of the Association. Section 3: Term. The officers of this Association shall be elected annually by the Board and shall hold office for one (1) year unless he shall sooner resign, or shall be removed, or otherwise disqualified to serve. Section5. Resignation and Removal. Any officer may be removed from office with or without cause by the Board. Section 6 Vacancies. A vacancy in any office may be filled by appointment by the Board. The officer appointed to such a vacancy shall serve for the remainder of the term of the officer he replaces.

Copies of our governing documents (probably way to much time involved) are at "http://www.sp-hoa.com/documents.html"
Submitted: 3 years ago.
Category: Business Law
Expert:  Jane Doe Deer replied 3 years ago.

Thank you for contacting Just Answer. I look forward to assisting you.

 

While we write back and forth, please keep in mind that I do not know what you already know or don't know, or with what you need help, unless you tell me. Sometimes I'm unable to read your entire question until AFTER I write back to you.

 

Although it's usually five minutes, sometimes there can be a delay of an hour or more in between my answers because I may be researching the answer to your question, helping other customers, or taking a break. If we are writing late at night, I may have to go to sleep and resume helping you the following morning.

 

I need the following information before I can answer your question:

 

Can you please tell me whether the Secretary that you removed was a Board member or a paid employee? And is that the only question you have?

 

I'll look forward to hearing from you,

 

Jane Doe Deer

 

Customer: replied 3 years ago.
The Secretary was a Board member. I sorry I was unclear, that board member held the Office of Secretary (and officer of the board). It is a working board (board managed) with no paid employees. There are 132 homes in the association. The board is suppose to consist of 7 members. 2 had resigned 2 months earlier, and no replacements had been found to fill the positions. So the board at the time was 5 members (inclusive of the board member that held the Office of Secretary). She was voted off the Board of Directors (and thus also the Office she held).

Don't worry about delays. I have several days to try and figure this out.
Thanks
Expert:  Jane Doe Deer replied 3 years ago.

Ah, thank you! It appears from your Bylaws that you did everything in accordance with the Bylaws as far as removing the person from her "office" as secretary. If it was a 4 to 1 vote, the majority of the Board voted against the Secretary. (If all seven members had been present, 4 would be enough - but probably the vote with just five members was sufficient.) So, in another words, the Board has the authority to remove a Board member from the Office of Secretary of the Board.

 

However, the Board does not have the authority to remove a fellow board member FROM THE BOARD at all. "Removal. Any director may be removed from the Board with or without cause, by a majority vote of the members of the Association." Only the members have this power, according to your Bylaws. Not the Board.

 

I see only one exception:

 

"d) declare the office of a member of the Board of Directors to be vacant in the event such member shall be absent from three (3) consecutive regular meetings of the Board of Directors."

 

So, if the Board voted the member OFF THE BOARD it exceeded its authority, UNLESS the member missed three consecutive regular meetings.

 

The "Remedy" is to apologize in a letter and invite her to continue to work on the Board until if and when the membership says otherwise.

 

May I be of further help? I have an excellent reason for my delay in getting back to you, but since it involves a newly discovered rat infestation, you probably don't want to know!

 

I'd be happy to answer follow-up questions. Just write back!

 

If we're all through, please be so kind as to click on "accept" - otherwise, I won't be paid at all for my time...

 

My best,

 

Jane

 

 

 

 

 

 

 

Customer: replied 3 years ago.
Thanks, XXXXX XXXXX answered my question.
As a postscript: If there was a past presidence for removing a Board Member in this maner, does that make this more legit??
Thanks,
I will "ACCEPT ANSWER" within 24 hours.
Appriciate it!!
Expert:  Jane Doe Deer replied 3 years ago.

No. If you're breaking a Bylaw, just because it was done before doesn't make it more right this time.

 

If it was done this way before, however, it makes the mistake far easier to explain away.

 

Does that help?

 

My best,

 

Jane

Jane Doe Deer, Attorney
Category: Business Law
Satisfied Customers: 3864
Experience: Atty since 1986. Real estate, tax, and other business law questions
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