QUESTION: We had a director resign upon the successful appointment of her successor. During the board meeting, a director made a motion to appoint a member to fill the seat. It was seconded and passed with 3 voting in favor.
The other 2 directors said nothing. The president announced the motion had carried. But an argument erupted and 5 minutes later the president told the other 2 directors they could submit a candidate to fill the seat.
ANSWER: I know the president was trying to make everyone happy but the horse was already out of the barn. Unless there were some kind of procedural violation or the Russians tampered with the vote, the first motion appointing an owner to the seat passed and you have a new director.
The other two directors might want to submit a different candidate but their motion would be out of order since you no longer have a vacant seat to fill. The resigning director is now off the board and her replacement is now on the board. There is no longer a vacancy to fill.
QUESTION: For a special assessment vote, can the board open the ballots?
ANSWER: No. The Davis-Stirling Act requires that boards retain an independent inspector of electionsto open ballots and tally the votes. Doing so avoids any suspicion of ballot tampering. Election procedures regarding an inspector should be found in your association’s Election Rules.
QUESTION: Recently, when a board member told an owner he could not park in a fire lane, the owner used profanity, shouted at the board member and damaged personal property the director had in her hand. The director filed a police report, a copy of which is in the homeowner’s file. Do board members have a right to view the police report?
ANSWER: Some people have no business living in an association. If your hot-tempered owner assaulted a director for trying to keep fire lanes open, you will likely have more trouble with him in the future.
Hearing. Do board members have a right to see the police report? Yes. The board should call your scofflaw to a hearing for parking in a fire lane and assaulting a director. Assaulting a director is probably not in your rules but could fall under the general nuisance provision of your CC&Rs.
Recusal and Evidence. The director who was attacked must recuseherself from deliberating and voting at the hearing but may testify about what happened. The police report also serves as evidence. The homeowner who violated the rules has a right to a copy of the police report, which should be given to him at the hearing.
Penalties. If the board concludes the owner parked in a fire lane and assaulted a director, it can levy fines in accordance with the association’sfine policy. Suspending his privileges for up to 30 days is another possibility.
Restraining Order. The board might also consider seeking a restraining order against the person. Your board should seek legal counsel about how best to proceed with legal action against the owner.
RECOMMENDATION: Directors should avoid confrontations with homeowners over rules violations. A letter from the management company is safer and it creates a paper trail, which may be important if there are repeated violations.
Davis-Stirling.com by Adams Stirling PLC