An update to a consideration of the consequences . . .

The ballot package has now arrived complete with the final legal wording of the eight proposed bylaw changes. As a word of caution, the enclosed “Voter Guide” that has been previously distributed throughout various media does not summarize all significant changes found in the legal document. Further, perusal of the documents now finds that two additional amendments also contain language that is in conflict with our existing covenants. Given this new information, an update to the previous post on this site (1) is now warranted.

Amendment I:  Adoption of Electronic and Virtual Meeting and Voting Procedures . . .

First, what could have been an innocuous revision likely acceptable to many members of the association actually includes a completely new section 2.8 sanctioning virtual association meetings that would allow any annual, regular or special member meetings to be conducted by remote communications (i.e. Zoom). This change could be the mechanism to completely eliminate the much missed in person board and town hall meetings this community was accustomed to prior to Covid.

It is particularly concerning that not only the Voter Guide  (2) but also the POA President’s November 8th message (3) found in Smoke Signals fail to make any mention of this very important change when discussing the “Electronic Voting” amendment. Further, both messages also misleadingly assert that members will continue to receive paper ballots unless they “choose to opt in” yet no language to that effect has been found in the legal document.

And finally, this amendment allowing the electronic delivery of notices, etc. is contrary to the language found in the 1988 Covenants,  Article IX, Section 3 , (4) stating that required notices will be deemed properly sent “when mailed, with the proper postage affixed . . .” Again, as stated previously, with covenants trumping bylaws, it appears this change, even if approved, would be unenforceable thereby resulting in no cost savings to the Association as proclaimed by leadership.

Amendment II:  Rights of an Owner’s Spouse . . .

While this amendment has commonly been promoted as a means to allow the spouse of an owner to run for the board, it also goes further and seeks to amend section 2.5 (a) of the bylaws to read “Each member of the POA “or his or her spouse” shall be entitled to cast that number of weighted votes, according to the type(s) of his membership as specified in Article V of the Articles. “ Unfortunately the granting of voting rights to an owner’s spouse is contrary to the  Articles of Incorporation  (5) and Article III Section 2 of the 1988 covenants. (6)  In addition, it appears that this action would not be permitted by Georgia Code Section 14-3-727 and is yet another example of an unenforceable amendment.

And Finally . . .

It is beyond disappointing that we as property owners have not been fully informed by the board regarding the content of these amendments. Further, with covenants having hierarchy over bylaws, it is therefore difficult to understand why this board would even put these three unenforceable amendments (I. Electronic Voting, II. Rights of an Owner’s Spouse and III. Quorum ) before membership for a vote. With untold hours and dollars of legal expense to prepare these documents, surely, it would have been more efficient to have addressed our covenants prior to suggesting any conflicting changes to the bylaws.

. . . . .

As always, please feel free to contact me at thepcrosses@gmail.com for questions or further discussion. Likewise, should you wish to see additional articles posted in the future, please subscribe for an email notification. Meanwhile . . . take care and stay safe.

Patricia Cross (10438 Big Canoe)

References:

1)  https://bcmatters.org/a-consideration-of-consequences/

2)  Voter Guide

3)  POA President’s November 8^th message in Smoke Signals, “Why the 2021 election is so important and why you need to participate”, https://smokesignalsnews.com/news/big_canoe/why-the-2021-election-is-so-important-and-why-you-need-to-participate/article_376ce644-40c1-11ec-b9b1-072bb28d13ac.html

4) 1988 Covenants,  Article IX, Section 3

5)  Articles of Incorporation

6) 1988 Covenants,  Article III Section 2