A consideration of consequences . . .

As the holiday season quickly approaches, yet another election is upon us that will also include eight proposed changes to the association bylaws. According to the minutes of the October 4^th closed door board work session, (1) members of the board voted unanimously to approve “the final wording of these changes” to our governing documents. Subsequently, the “Big Canoe POA Voter Guide: Proposed Bylaws Amendments” was published throughout various media followed by a brief discussion at the October 28^th meeting of the board of directors.

Ask the POA . . .

Lacking any specific details or prior property owner opportunities to discuss and/or debate, this writer submitted a request to  Ask the POA Ticket#5383 (2) for a copy of the legal wording of the proposed changes presumably approved by the board on October 4^th. A response was provided by the POA Treasurer stating that the “final amendment language hasn’t come back from our attorney” while also noting that “It’s written in legalese so I wrote an article for Smoke Signals which appeared earlier this week explaining things in English . . .”.

“The Big Canoe Voter Guide” . . .

First, appreciation is indeed extended to the members of the Governance Task Force for their hard work this year reviewing our governing documents. And while the Board’s efforts to explain the proposed changes via the “Voter Guide” (3) are acknowledged, it is disappointing that the “legalese” version of the amendments is not presently available. That said, several corrections and clarifications to the “Voter Guide” warrant attention. (Note: Without any access to the final legal document, this discussion does not include any questions that might pertain to that language.)

Item No. Three – The Quorum:  Seeks to lower the required quorum to 25% . . .

• • The “Voter Guide” at  https://smokesignalsnews.com/eedition/news/page-n-002/page_d3205b0c-fa83-5df5-841e-74399b96f7a9.htm seems to imply that the current three step process of reducing the quorum to 25% is automatic. It is not. To paraphrase, if the current required 35% quorum is not achieved, there is a process whereby a majority can vote to adjourn and reconvene within 45 days using a lessor quorum requirement. (4)

• • Unable to locate any instance of the membership of the association failing to attain the 35% quorum, the board’s recommendation to lower the quorum to 25% is perplexing.

• • Using the eligible voter data found on the ballot of the recent “Capital Contribution Fee” amendment as an example, (5) lowering the quorum to 25% of eligible votes could allow a change to covenants to pass with as few as 686 votes.

• • Most importantly, this proposed change would contradict and thus be in violation of the 2005 restated and amended covenants requiring the tiered quorum requirements. (6) With covenants trumping bylaws, it appears this change, even if approved, would be unenforceable.

Item No. Seven – Amendments:  Seeks to dilute and lower the number of votes needed to make future changes to the bylaws . . .

The “Voter Guide” characterizes the current requirements as unrealistic and implies that past referendums on bylaws and covenants have been unable to meet the required turnout. Although the previous year’s attempt at a proposed change failed to meet the two-thirds required threshold, no further instances have been found.

• As information, historically, the turnout attained to amend the covenants (1988, 1994, 2001, 2005, 2010, 2012 and 2020 has far surpassed the amount required.

• Similarly, the first and second amendments to the bylaws were approved by the requisite two-thirds of all possible votes. Any recommendation to dilute and lower the requirements further is baffling.  

• Again using the “CCF” amendment data as an example, this change coupled with the lowered quorum requirement discussed above would permit future changes to our bylaws with as few as 905 votes.

Item No. Eight – Restate the bylaws:  “This would allow amendments successfully passed on this ballot, as well as all prior existing amendments, to be incorporated into one new, complete document for ease of use in the future.” . . .

Although this change would make research easier, this amendment is both problematic and confusing. For whatever reason, the 2006 Board of Directors, voted to amend and restate the bylaws without obtaining the required property owner vote. Similarly, changes were also made without property owner approval in 2007, 2016 and 2018. To be fair, this is an acknowledged point of disagreement that has been discussed previously on these pages (7) and will not be revisited now.

Instead, it is believed that the voter approval of this amendment to incorporate the passage of any of this ballot’s amendments into a new document, will also serve to now ratify those changes previously made by the 2006 Board absent property owner approval.

And even though today’s property owners might in fact be in agreement with those board only approved amendments, the following 2006 board changes deviating from the bylaws approved by the property owners in 2004 should be fully disclosed.

• Section 2.7 dealing with the suspension of voting rights also allowed for automatic reinstatement of those rights upon payment of any past due assessments. The 2006 board approved amendment did not provide for automatic reinstatement thus resulting in property owners past due at month end unable to receive a ballot. (Note: Although previously posted, copies of the property owner approved 2004 bylaws are not currently available on the POA website.)

• Section 3.9 – Consistent with the 2004 property owner approved bylaws as well as Georgia code 14-3-821, (unless specified otherwise in the bylaws) unanimous consent is required for any board action (vote) taken outside a meeting. This restriction would apply to the closed board work sessions. The 2006 bylaw amendment diluted that requirement to require majority consent only. (Note: In fact, the board appears to defer to that 2004 bylaw and code in an August 2020 board work session when a proposal failed to attain an unanimous vote.) (8)

• Section 3.10 alters the steps required for the removal of a director by membership.

And now we will await the ballot package and amendment language . . .

Keep in mind, the last amendment to our governing documents requiring a property owner vote also contained a fact sheet containing information now found to be inaccurate. (9) This is our vote. Ponder carefully. 

. . . . .

As always, please feel free to contact me at thepcrosses@gmail.com for questions or further discussion.  Meanwhile . . . take care and stay safe.

Patricia Cross (10438 Big Canoe)

References:

1) October 4^th, 2021 Special Board Session Minutes (POAwebsite>login>POA>Meetings>BoardDocuments>MeetingNotes)

2) Ask the POA Ticket#5383 dated October 29^th, 2021 Ask the POA Ticket#5383

3) “Big Canoe POA Voter Guide: Proposed Bylaws Amendments”

https://smokesignalsnews.com/eedition/news/page-n-002/page_d3205b0c-fa83-5df5-841e-74399b96f7a9.html

4) “Read the Fine Print”, September 14^th, 2020, bcmatters.org, https://bcmatters.org/read-the-fine-print-please/

5) CCF Amendment Ballot  CCF Amendment

6) 2005 Covenants , Article X, Section 5(i)

7) “Governance 101”, December 30^th, 2019, bcmatters.org, https://bcmatters.org/governance-101/

8) Work Session Notes August 10^th, 2020

(POAwebsite>login>POA>Meetings>BoardDocuments>MeetingNotes>August10th)

9) “A betrayal of trust”, October 29^th, 2021, bcmatters.org, https://bcmatters.org/a-betrayal-of-trust/